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THE 


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Relation  of  Religio 

TO 

Civil  Government 


ilSIUl  StW 


*v5J 


THE  UNITED   STATES   OF    AMERICA 


A  STATE  WITHOUT  A  CHURCH,  BUT  NOT  WITHOUT  A  RELIGION 


ISAAC   A.   CORNELISON 


G.  P.  PUTNAM'S  SONS 

NEW  YORK  LONDON 

27  WEST  TWENTY-THIRD  ST.  24  BEDFORD  ST.,  STRAND 

®1jc  |\iuckcrbocker  |^k3s 
1895 


COPYRIGHT,   1895 


G.    P.    PUTNAM  S   SONS 


Ube  "Kniciierboclier  |>ress,  t\evo  2Sorb 


PREFACE. 


It  has  seemed  to  the  author,  that  it  would  be  proper 
for  him  to  give  to  his  readers,  beforehand,  what  the 
astromomers  would  call,  his  "personal  equation,"  upon 
the  subject  he  is  now  undertaking  to  discuss. 

He  would,  therefore,  say  that,  in  the  study  of  the 
early  history  of  our  government,  his  sympathies  have 
been  wholly  with  the  distinctive  political  views  of 
Washington  and  Hamilton  ;  and  not  with  those  of 
Jefferson  and  Madison.  His  highest  admiration  is 
given  to  those  who  secured  the  formation  and  adoption 
of  the  Constitution  of  the  United  States, — a  Federalist 
measure — which  transformed  a  weak  and  unstable 
confederacy  of  independent  States,  into  a  vigorous  and 
indissoluble  Union  ;  leaving  the  several  States  in  their 
integrity,  while  constituting  the  people  of  all  the  States, 
a  Nation.  But,  that  being  secured,  and  unalterably 
established,  the  author  has  found  himself  drifting  away 
from  Federalism.  By  reason  of  a  mental  bent,  pro- 
duced by  accidental  circumstances,  or  of  a  mental 
type,  received  b}^  inheritance,  he  will  have  to  be  classed 
with  that  school  in  politics  which  is  negative  and  re- 
strictive in  its  policy,  rather  than  with  one  that  is 
positive  and  aggressive.  On  all  questions  relating  to 
the  functions  of  civil  government  and  the  extent  of  its 


k 


iv  Preface. 

power,  he  finds  himself  affected  with  an  antecedent, 
perhaps  a  predeterminate  inclination  to  the  negative  ; 
that  is,  to  the  reduction  of  the  functions  of  civil  gov- 
ernment to  their  lowest  terras  ;  and  the  restriction  of 
its  powers  to  their  narrowest  limits.  He  finds  himself 
opposed  to  centralization  and  paternalism  in  our  own 
government.  While  he  is  ready  to  concede  that  pater- 
nalism was  the  primitive  form  of  government,  he  main- 
tains that  the  laws  of  social  development  have  tended, 
and  do  necessarily  tend,  to  a  progressive  reduction  of 
its  powers. 

The  individual  independence  of  democracy,  as  a 
theory,  opposed  to  the  fostering  paternalism  of  mon- 
archy, seems  to  him  to  be  now  on  trial ;  that  trial 
forming  the  political  problem  of  the  present  epoch. 
Were  it  his  lot  to  be  living  at  the  conclusion  of  the 
trial,  he  trusts  that  he  would  be  able  to  accept  the 
result  with  good  grace,  if  it  should  happen  to  be 
adverse ;  but  he  thinks  that  in  the  meantime  the 
theory,  on  trial,  should  be  consistently  carried  out,  and 
not  be  complicated  with  its  opposite.  In  a  democrac)^ 
the  many  may  not  claim  to  be  better  judges  of  the  per- 
sonal interests  of  the  one  than  the  individual  himself. 
They  may  not,  therefore,  compel  him  to  act  in  a  matter 
relating  only  to  his  own  interest,  against  his  own  judg- 
ment, and  in  accordance  with  theirs.  It  may  be  that, 
in  the  use  of  his  liberty,  he  will  do  himself  harm  ;  but 
the  discipline  of  responsibility  will  tend  to  strengthen 
and  elevate  the  man,  which  would  be  far  better  than 
that  he  should  escape  a  particular  harm  by  the  surren- 
der of  his  liberty  and  the  transfer  of  his  responsibility 
to  others.  This  being  the  principle  upon  which  the 
divine  government  of  the  world  is  conducted,  it  must 
be  regarded    as  founded   in  the   highest  wisdom   and 


Preface.  v 

benevolence,  and  therefore  as  best  fitted  (at  least  in 
the  case  of  adults)  to  promote  the  welfare  of  mankind. 
The  Creator  has  made  special  provision  in  nature  for 
the  paternal  government  of  the  young  ;  but  he  has  made 
it  plain  that  it  is  the  proper  aim  of  that  government  to 
secure  its  own  earh^  extinction  by  developing  in  the 
young  the  power  of  self-government.  This  divine  in- 
tention is  manifested,  wath  especial  clearness,  in  the 
lower  animal  creation,  for  there  the  dam  does  not  rec- 
ognize her  offspring,  or  even  know  them  as  her  own, 
after  they  have  come  to  maturit)'. 

The  authorit}'^  of  civil  government,  when  it  interferes 
with  the  liberty  of  the  individual,  for  the  purpose  of 
securing  his  own  good,  and  not  merely  for  the  purpose 
of  preventing  his  interference  with  the  liberty  of  his 
fellowman,  is  pedagogic,  fulfilling  an  office  like  that  of 
the  freedman  or  slave  who,  in  ancient  times,  was  given 
authority  to  conduct  the  child  from  the  home  to  the 
school.  The  authority  of  the  pedagogue  over  the  child 
was  legitimate  and  proper  for  a  time,  but  when  he  had 
delivered  the  child  to  the  teacher  his  authority  ceased. 
The  fulfilment  of  the  function  of  his  office  was  the  very 
thing  which  brought  his  authority  to  an  end.  Even 
the  Mosaic  law,  the  apostle  Paul  argues,  was  of  this 
character.  ' '  Therefore  the  law  was  our  pedagogue 
{naidaycoyoi^  child-conductor,  not  diddffxaXoSi, 
school-master  or  teacher,  as  it  is  given  in  the  A.  V.) 
to  bring  us  to  Christ."  Gal.  iii.,  24.  He  affirms  there- 
fore that  ' '  The  law  of  the  Spirit  of  life  in  Christ  Jesus 
hath  made  me  free  from  the  law  of  sin  and  death." 
Rom.  viii.,  i.,  arid  exhorts  the  Galatians  to  "  stand  fast, 
therefore,  in  the  liberty  wherewith  Christ  hath  made 
us  free."     Gal.  v.,  i. 

Paternalism  is  neither  an  evil  nor  a  wrong,  in  itself ; 


vi  Preface. 

but  it  is  both  when  it  proposes  to  make  itself  perpet- 
ual. Monarchies  are  not  all  to  be  denounced  as  sinful 
usurpations,  not  all  even  of  the  most  absolute.  Im- 
pulses, however,  are  operating  in  them  all  towards  the 
individual  freedom  of  democracy,  and  these  impulses, 
notwithstanding  the  efforts  of  the  rulers  to  repress  them, 
are  daily  gaining  strength.  No  one  who  observes  care- 
fully the  course  of  modern  history  will  fail  to  see  that 
the  Ruler  of  the  nations  is  guiding  the  course  of  events, 
among  civilized  peoples,  towards  that  high  consumma- 
tion. Among  the  monarchies  of  Europe  may  be  seen 
to-day  examples  of  the  various  stages  of  progress  to 
that  end.  Monarchy,  if  it  fulfil  its  mission,  will  ac- 
complish its  own  extinction.  If  its  aim  and  effort  be 
to  make  itself  perpetual  it  will  be  found  fighting  against 
God,  and,  as  the  times  ripen,  its  thrones  will  be  dashed 
to  pieces.  Paternalism,  under  whatever  form  of  gov- 
ernment, if  subject  to  the  Spirit  that  rules  the  world, 
will  aim,  not  at  the  perpetuation,  but  at  the  extinction 
of  its  authority. 

In  the  author's  view  it  cannot  be  a  permanent  func- 
tion of  civil  government  to  make  the  citizen  prosper- 
ous, intelligent,  moral,  or  religious.  In  his  view,  true 
wisdom  will  be  ever  looking  for,  and  ever  ready  to 
embrace,  opportunity  for  the  relinquishment  of  this 
function.  Therefore,  while  desiring  not  to  be  an  im- 
practicable theorist,  the  author  would  be  inclined  to  re- 
strict the  fostering  power  of  the  government,  in  all 
directions,  rather  than  to  enlarge  it,  in  any  direction. 
It  may  be  verj^  readily  inferred  that  he  is  not  in  favor 
of  a  union  of  Church  and  State.  He  rejoices  in  the 
fact  that  we  have,  in  this  country,  a  grand  system  of 
political  institutions,  entirely  separate  from  all  ecclesi- 
astical institutions.     He  rejoices  also  in  the  fact  that, 


Preface.  vii 

upon  this  question,  there  is  no  diversity  of  sentiment 
among  American  citizens. 

The  question  still  remains,  however,  whether  a  State, 
without  a  Church,  is  also  without  a  Religion.  The 
question  of  the  union  of  Church  and  State,  not  being 
of  any  practical  interest  in  this  country,  he  does  not 
propose  to  discuss.  The  discussion  will  be  confined 
exclusively  to  the  former  question.  That  question  is 
beginning  to  work  like  a  ferment  in  the  public  mind  ; 
and,  as  in  all  other  fermentations,  so  in  this :  there 
will  be  at  first  commotion,  turbidness,  and  heat.  In 
due  time,  the  crudities  will  settle  away  and  the  mass 
will  become  quiet  and  clear.  It  ought  to  be  the  desire 
of  every  patriot  and  philanthropist  to  contribute  to 
the  hastening  of  this  result.  It  is  with  such  desire  the 
author  enters  upon  this  discussion  of  the  relation  of 
Religion  to  Civil  Government,  in  the  United  States  of 
America. 

The  best  thought  upon  the  subject  is  to  be  found  in 
the  decisions  of  the  various  courts,  Federal  and  State, 
owing,  no  doubt,  to  the  fact  that  it  has  been  wrought 
out  by  vigorous  minds,  specially  disciplined,  and  act- 
ing under  a  strong  sense  of  duty.  But  the  enunciations 
of  principle,  in  these  decisions,  having  been  made,  in 
connection  with  a  great  variety  of  particular  cases,  and 
being  scattered  through  a  great  many  series  of  Reports, 
do  not  form  a  complete  and  harmonious  S3^stenl,  The 
author  has  found  it  necessary,  in  the  investigation  of 
his  subject,  to  traverse  these  enunciations,  and  to  at- 
tempt an  informal  digest  of  their  contents.  For  readers 
of  the  legal  profession,  mere  references  to  the  decisions 
of  the  courts  would  have  been  sufficient,  but  he  has 
thought  best  to  make  large  extracts  from  the  leading 
decisions  on  the  subject,  and  to  include  them  in  the 


viii  Preface. 

body  of  the  work,  rather  than  to  consign  them  to  an 
appendix.  He  entertains  the  hope  that  what,  at  first 
sight,  might  seem  to  be  an  encumbrance  of  the  work, 
will  prove  to  be  one  of  the  most  interesting  parts  of  it. 
Indeed,  he  is  led  to  believe,  that  it  would  be  no  small 
help,  in  forming  a  satisfactory  opiuion  on  the  subject, 
if  all  the  decisions  of  the  courts  that  bear  in  any  way 
upon  it  were  collected  and  published  together  in  full. 

It  may  be  inferred  from  this  latter  observation,  that 
the  author  does  not  flatter  himself  with  the  assurance, 
that  he  has  succeeded  in  unravelling  all  the  intricacies, 
and  solving  all  the  difficulties,  of  the  subject  he  has 
undertaken  to  treat.  He  feels  that  he  needs,  especially, 
to  maintain  a  modest  demeanor  in  the  presence  of  the 
judiciary  and  other  learned  members  of  the  legal  pro- 
fession. If  what  he  has  done  shall,  in  the  least  degree, 
help  others  to  the  formation  of  a  satisfactory  opinion 
for  themselves ;  or  shall  provoke  them  to  contribute 
something  towards  the  ascertainment  of  the  absolute 
truth  and  the  establishment  of  perfect  justice,  he  will 
feel  that  he  is  amply  compensated  for  his  labor. 

The  author  has  had  recourse,  for  information,  as  far 
as  he  could  find  it  possible,  to  original  sources  ;  when 
that  was  not  possible,  he  has  drawn  from  other  sources 
regarded  as  trustworthy.  The  various  authorities 
from  whom  he  has  made  quotations  are  indicated  in 
connection  with  the  quotations.  The  extracts  made 
from  Charters  and  Constitutions  are  taken  from  The 
Federal  and  State  Constitutions,  Colonial  Charters  and 
other  Organic  Laws  of  the  United  States,  compiled  nnder 
the  order  of  the  United  States  Senate,  by  Ben  Perley 
Poorc.  Published  at  the  Government  Printing- Office 
at  Washington,  D.  C,  1877, 

Washington,  111.,  March,  1895, 


CONTENTS. 


PART   I. 


I.     The  General  History  of  the  Subject .         ...  3 

II.     The  Colonies 6 

I.     Virginia         ........  6 

Plymouth 23 

Massachusetts  Bay -27 

ISIaine 40 

New  Hampshire 41 

Connecticut -44 

New  Haven 53 

The  Confederation 58 

Rhode  Island 61 

Vermont 66 

New  York      ........  67 

New  Jersey    ........  68 

Pennsylvania         .......  68 

Maryland 71 

Carolina         ........  79 

Georgia 83 


III.     Deductions  from  the  History 


85 


PART  II. 

I.     Statement  of  the  Question 
II.     The  Constitution  of  the  United  States 

III.     The  States 

I.     Connecticut 


91 
92 
96 
96 


X 

Contents. 

CHAPTE 

R 

PAGE 

III. 

2. 

Vermont      ...... 

•       97 

3- 

New  Hampshire  . 

. 

•       98 

4. 

New  Jersey 

. 

•       99 

5- 

Pennsylvania 

•       99 

6. 

Delaware     . 

.     100 

7. 

Maryland     . 

.     100 

8. 

North  Carolina   . 

.       lOI 

9- 

South  Carolina   . 

.       lOI 

lo. 

Massachusetts 

.     104 

IV. 

The  Ordinance  of  1787 

.     Ill 

V. 

The  Common  Law    . 

.     120 

VI. 

Equity 

.     122 

VII. 

The  Opinions  of  Jurists 

.     125 

VIII. 

Decisions  of  the  vState  Supreme  Courts 

.     127 

IX. 

Decisions  of  the  United  States  Supreme  Court        .     139 

X. 

Jefferson's  Argument  and  Clayton's  Answer 

.     146 

XI. 

The  Treaty  with  Tripoli  .... 

.         .     163 

PART 

III. 

I. 

II. 

III. 

IV. 


V. 

VI. 
VII. 

VIII. 

IX. 

X. 

XI. 

XII. 
XIII. 

XIV. 


Antiquated  Theories  ......     167 

No  Theory  to  be  Oifered.    Only  Justice  to  be  sought     175 

Limitations 177 

Mystical  Theories  of  the  State  .         .         .         .181 

1.  The  Personality  of  the  State       .         .         .         .181 

2.  Sovereignty 191 

Religious  Amendment  of  the  Constitution  of  the 

United  States .     203 

Exceptions  to  Limitations 243 

Religion  in  the  Public  Schools        ....     247 

Decisions  of  the  Courts  on         ...         .     265 

Full  Liberty 290 

Untenable  Theories  ......     292 

vSunday  Laws,  Opinions  of  the  Courts     .         .         .     300 
Blasphemy         ........     305 

Christian  Character  Remains  ....     308 

Sunday  Laws  have  a  Christian  Basis  .  .  -311 
Sunday  in  the  Constitution  of  the  United  States  .     317 


Contents. 


XI 


CHAPTER 

XV. 

XVI. 

XVII. 

XVIII. 

XIX. 


Sunday  in  the  Common  Law         ....     324 

The  Oath 328 

Restriction  of  Function,  not  Renunciation  .         .     329 
The  Demand  for  Neutrality  .....     330 
Duties  of  the  State  as  Christian    ....     341 
1st.     Not  to  adopt  positive  measures  for  the  fos- 
tering of  Christianity       341 

2d.     To  give  preference  and  favor  to  Christianity,     349 
3d.     To  give  equal  protection  to  Christians,  Non- 
Christians,  and  Anti-Christians      .         .         -351 
4th.     Not  to  adopt  any  sectarian  Christian  doc- 
trines, nor  protect  bequests  for  pious  uses     .     355 
5th.     Not  to  give  favor  and  protection  to  a  trust 

created  with  purpose  hostile  to  Christianity  .     362 
6th.     Not  to  discontinue  any  Christian  practice 

for  any  reason  derogatory  to  Christianity      .     363 
7th.     Either  to   exempt  church   property  from 

taxation  or  change  principle  of  exemption    .     365 
8th.     Conform  its  actions  on  moral  questions  to 

the  precepts  of  Christianity    ....     367 
9th.     To  observe  the  Lord's  day  as  a  day  of  rest 
and  conform  its  regulations  to  the  view  held 
by  the  majority  of  the  people         .         .         .     369 
loth.     To   require  that   all    teaching    in    High 
Schools,    State    Universities,    Military   and 
Naval  Academies  be  in  accordance  with  the 
fundamental  truths  of  Christianity         .         .     375 
XX.     Conclusion 380 


PART  I. 

A  question  of  history.  What  has  been  the  relation  of  religion 
to  civil  government,  in  the  world  at  large  ;  and  especially 
in  the  colonies  which,  after  the  Declaration  of  Indepen- 
dence in  1776,  became  States  of  the  United  States  of 
America  ? 


CHAPTER  I. 

THE   GENERAIv  HISTORY  OF  THE  SUBJECT. 

Among  all  the  nations  of  antiquity,  and  among  all 
the  heathen  nations  of  the  present  day,  we  find  the 
religious  institutions  of  the  people  incorporated  with 
their  civil  and  political  institutions. 

As  soon  as  it  appeared  that  Christianity  was  destined 
to  supplant  paganism  among  the  Roman  people,  as  it 
did  in  the  time  of  Constantine  I.,  Christianity  was  made 
the  religion  of  the  Empire.  Offences  against  the  Church 
were  regarded  as  crimes  against  the  State,  and  were 
punished  with  fines,  imprisonment,  banishment,  and 
death. 

This  relation  of  Christianity  to  the  State  has  been 
maintained,  with  various  modifications,  in  all  the  coun- 
tries of  Europe,  down  to  the  present  day.  It  existed  in 
England,  the  fountain  head  of  our  own  national  life  ; 
and  it  might  have  been  expected  that  in  the  course  of 
historic  continuity  it  would  prevail  in  the  colonies  of 
England  in  America  ;  unless  special  causes  should 
operate  to  prevent  it.  The  expeditions  fitted  out  in 
England  for  the  founding  of  settlements  in  the  new 
world,  had  a  religious,  as  well  as  a  commercial,  pur- 
pose ;  that  purpose  being  distinctly  expressed  in  the 
charters  and  grants  given. 

3 


Early  Expeditio7is. 


Sir  Humphrey  Gilbert,  half  brother  of  Sir  Walter 
Raleigh,  was  sent  out  on  an  expedition  of  exploration 
and  occupation,  in  1578  ;  and  one  object  of  the  expedi- 
tion, stated  in  his  commission,  was  "  compassion  of 
poore  infidels,  captived  by  the  devil,  and  the  establish- 
ment of  a  system  of  government  not  against  the  true 
Christian  faith  professed  in  the  Church  of  England." 

In  the  Letters  Patent  granted  to  Sir  Walter  Raleigh 
by  Queen  Elizabeth  in  1584,  he  was  authorized  to  "  dis- 
cover, search,  find  out,  and  view  such  remote  heathen 
and  barbarous  lands,  countries,  and  territories,  not 
actually  possessed  of  any  Christian  prince,  nor  inherited 
by  any  Christian  people  ;  ...  to  have,  hold, 
occupy  and  enjoy,  to  him,  his  heirs  and  assigns  forever, 
with  all  prerogatives,  commodities,  jurisdictions,  royal- 
ties, privileges,  franchises  and  pre-eminences  . 
as  we,  or  any  of  our  royal  progenitors  have,  heretofore, 
granted  to  any  person  or  persons,  bodies  politic  or  cor- 
porate." In  giving  him  authority  to  establish  govern- 
ment and  make  laws,  it  was  provided,  "So  always  as 
the  said  statutes,  laws,  and  ordinances  ...  be  not 
against  the  true  Christian  faith,  now  professed  in  the 
Church  of  England." 

The  three  Charters  of  Virginia,  given  by  James  I.  in 
1606,  1609,  and  1611-12,  respectivel}',  disposed  of  all 
the  territory  lying  between  the  mouth  of  the  St.  John's 
River  in  Florida  and  the  middle  of  Nova  Scotia,  and 
extending  westward  to  the  ' '  South  Sea. ' '  The  grantees 
were  to  be  divided  into  two  companies  ;  the  one  to  have 
its  location  in  I^ondon,  its  colony  to  be  known  as  The 
First  Colony  of  Virginia  ;  and  to  possess,  under  the 
third  charter,  the  territory  lying  between  30°  and  41° 
N.  latitude,  the  parallels  of  the  mouth  of  the  St.  John's 
River,  Florida,  and  New  York  City.     The  other  was 


Early  Expeditions.  5 

to  have  its  location  in  Plymonth ;  its  colony  to  be  known 
as  The  Second  Colony  of  Virginia  ;  and  to  possess  the 
territory  lying  between  38°  and  45^  N.  latitude — the 
parallels  of  Washington  City  and  St.  Andrews,  Nova 
Scotia.  In  the  charter  of  these  two  companies  the  King 
says:  "We,  greatly  commending,  and  graciously  ac- 
cepting of  their  desires  for  the  furtherance  of  so  noble  a 
work,  which  ma}-,  by  the  Providence  of  Almighty  God, 
hereafter  tend  to  the  glory  of  His  Divine  Majesty,  in 
propagating  Christian  religion  to  such  people  as  yet  live 
in  miserable  ignorance  of  the  true  knowledge  and  wor- 
slnp  of  God ;  and  ma}-,  in  time,  bring  the  infidels  and 
savages  living  in  those  parts  to  civility,  and  to  a  settled 
and  quiet  government  ;  do,  by  these  our  I^etters  Patent, 
graciously  accept  of,  and  agree  to  their  humble  and 
well-intended  desires. ' ' 

"  Articles,  Instructions,  and  Orders,  made,  set  down, 
and  established  by  us,  tv/entieth  day  of  November,  in 
the  3'ear  of  our  reign  of  England,  France,  and  Ireland, 
the  fourth  (1606),  and  of  Scotland,  the  fortieth,  for  the 
good  order  and  government  of  the  two  several  colonies 
and  plantations  to  be  made  by  our  loving  subjects  in 
the  country  commonly  called  Virginia,  and  America, 
between  thirty-four  and  forty-five  degrees  from  the 
equinoctial  line.  .  .  .  And  we  do  especially  ordain, 
charge,  and  require  the  said  presidents  and  Council  and 
the  ministers  of  the  said  several  colonies,  respectively, 
within  their  several  limits  and  precincts,  that  they,  with 
all  diligence,  care,  and  respect,  do  provide  that  the  true 
word  and  service  of  God  and  Christian  faith  be  preached, 
planted,  and  used,  not  only  within  every  of  the  said 
several  colonies,  but  also,  as  much  as  they  may, 
amongst  the  savage  people  which  do,  or  .shall,  adjoin 
unto  them  or  border  upon  them,  according  to  the  doc- 


The  Early  Charters. 


trine,  rites,  and  religion  now  professed  and  established 
within  our  realm  of  England  ;  and  that  they  shall  not 
suffer  any  person  or  persons  to  withdraw  any  of  the 
subjects  or  people  inhabiting,  or  which  shall  inhabit 
within  any  of  the  said  several  colonies  and  plantations, 
from  the  same  or  from  their  due  allegiance  unto  us,  our 
heirs  and  successors." 

The  Plymouth  Company  received,  at  their  request,  a 
new  charter  from  James  I.  in  1620,  "  for  the  planting, 
ruling,  ordering  and  governing,  of  New  England,  in 
America"  ;  and  granting  them  the  territory  between 
40°  and  48°  N.  latitude,  the  parallels  of  Philadelphia, 
Pa.,  and  New  Carlisle,  in  northern  New  Brunswick. 
In  this  charter  the  king  says  :  "  We,  according  to  our 
princely  inclination,  favoring  much  their  worthy  dis- 
position, in  hope,  thereby,  to  advance  the  enlargement 
of  Christian  religion,  to  the  glory  of  God  ;  as,  also,  by 
that  means,  to  stretch  out  the  bounds  of  our  dominions  ; 
and  to  replenish  those  deserts  with  people,  governed  by 
laws  and  magistrates,  for  the  peaceable  commerce  of 
all.     .     .     ." 


CHAPTER  II. 
the;  colonies. 

I.  Virginia.  The  first  settlement  was  made  by  the 
lyondon  Company,  on  James  River,  in  1607,  and  among 
the  first  laws  made  by  the  Assembly  of  Virginia,  which 
met  in  16 19 — the  first  laws  enacted  within  the  territory 
now  occupied  by  the  United  States — it  was  enacted  : 

"  I.  That  there  shall  be,  in  every  plantation,  where 
the  people  use  to  meet  for  the  worship  of  God,  a 
house  or  room,  sequestered  for  that  purpose,  and  not 


The  Colonies. 


to  be  for  any  temporal  use  whatever  ;  and  a  place  em- 
paled in,  sequestered  only  to  the  burial  of  the  dead. 

"  2.  That  whosoever  shall  absent  himself  from  divine 
ser\'ice  any  Sunday,  without  an  allowable  excuse,  shall 
forfeit  a  pound  of  tobacco  ;  and  he  that  absenteth  him- 
self a  month  shall  forfeit  fifty  pounds  of  tobacco. 

"3.  That  there  be  an  uniformity  in  our  church,  as 
near  as  may  be,  to  the  canons  in  England,  both  in  sub- 
stance and  circumstance  ;  and  that  all  persons  yield 
ready  obedience  unto  them  under  pain  of  censure. 

"  5.  That  no  minister  be  absent  from  his  church  above 
two  months  in  all  the  year,  upon  penalty  of  forfeiting 
half  his  means  ;  and  whosoever  shall  be  absent  above 
four  months  in  the  year  shall  forfeit  his  whole  means 
and  cure. 

' '  6,  That  whosoever  shall  disparage  a  minister,  with- 
out bringing  sufficient  proof  to  justify  his  reports, 
whereby  the  minds  of  his  parishioners  may  be  alienated 
from  him,  and  his  ministry  prove  the  less  effectual,  by 
their  prejudication,  shall  not  only  pay  five  hundred 
pounds  of  tobacco,  but  also  ask  the  minister  so  wronged, 
forgiveness  publicly  in  the  congregation.     .     .     , 

"  19.  The  proclamations  for  swearing  and  drunken- 
ness, set  out  by  the  Governor  and  Council,  are  con- 
firmed by  the  Assembly;  and  it  is  further  ordered,  that 
the  church-wardens  shall  be  sworn  to  present  them  to 
the  commanders  of  every  plantation  ;  and  that  the  for- 
feitures shall  be  collected  by  them,  to  be  for  public 
uses."  ' 

'  The  Statutes  at  Large,  being  a  collection  of  all  the  Laws  of 
Virginia, from  the  first  session  of  the  Legislature  in  the  year 
i6ig.  Published  pursuant  to  an  Act  of  the  Ge7ie rat  Assembly 
of  Virginia,  passed  on  the  fifth  day  of  February  one  thousand 
eighteen  Inmdred  and  eight.  By  William  Waller  Hening,  vol. 
i.,  pp.  67,  68,  122,  123. 


TJic   Colon? rs. 


By  Act  VIII.  of  the  General  Assembly,  held  the 
i6th  day  of  October,  1629, 

"  It  is  ordered  that  there  be  an  especial  care  taken 
by  all  commanders  and  others,  that  the  people  do  repair 
to  their  churches  on  the  Sabbath  day,  and  to  see  that 
the  penalty  of  one  pound  of  tobacco,  for  every  time  of 
absence,  and  fifty  pounds  for  every  month's  absence, 
set  down  in  the  Act  of  the  General  Assembly  1623,  be 
levied,  and  the  delinquents  to  pay  the  same  ;  as  also  to 
see  that  the  Sabbath  day  be  not  ordinarily  profaned  by 
working  in  any  employments  or  by  journeying  from 
place  to  place."  ' 

By  Act  II.  of  the  Grand  Assembly  of  1631-32,  the 
commanders,  captains,  and  church- wardens,  were,  in 
God's  name,  earnestly  required  and  charged,  "that 
they  shall  endeavor  themselves,  to  the  uttermost  of 
their  knowledge,  that  the  due  and  true  execution  here- 
of may  be  done  and  had  through  this  colony,  as  they 
will  answer  before  God  for  such  evils  and  plagues 
wherewith  Almighty  God  may  justly  punish  his  people 
for  neglecting  this  good  and  wholesome  law  ' '  (the  law 
requiring  attendance  upon  church  on  Sunday).^ 

The  same  Assembly  adopted  the  following,  viz. : 

Act  IV.  ' '  And  it  is  further  ordered  and  thought  ex- 
pedient, according  to  a  former  order,  made  by  the  Gov- 
ernor and  Council,  that  all  church-wardens  shall  take 
this  oath,  and  that  it  be  administered  before  those  that 
are  of  the  commission  for  monthly  courts,  viz.  : 

' '  You  shall  swear  that  you  shall  make  presentments 
of  all  such  persons  as  shall  lead  a  profane  or  ungodly 
life  ;  of  such  as  shall  be  common  swearers,  drunkards, 
or  blasphemers  ;  that  shall  ordinarily  profane  the  Sab- 
bath days,  or  contemn  God's  holy  word  or  sacraments. 
'  IHd.,  p.  124.  '^  Ibid.,  p.  155. 


Virgznm. 


You  shall  also  present  all  adulterers  or  fornicators,  or 
such  as  shall  abuse  their  neighbors,  by  slandering,  tale 
carrj'ing,  or  backbiting,  or  that  shall  not  behave  them- 
selves soberly  and  orderly  in  the  church  during  divine 
service.  Likewise,  they  shall  present  such  masters  and 
mistresses  as  shall  be  delinquent  in  the  catechising  the 
youth  and  ignorant  persons.     So  help  me  God." 

Act  VIII.  "  It  is  also  thought  fit,  that  upon  every 
Sunday  the  minister  shall,  half  an  hour  or  more  before 
evening  prayer,  examine,  catechise,  and  instruct  the 
youth  and  ignorant  persons  of  his  parish,  in  the  com- 
mandments, the  articles  of  the  belief,  and  in  the  Lord's 
Prayer  ;  and  shall  diligently  hear,  instruct,  and  teach 
them  the  catechism,  set  forth  in  the  Book  of  Common 
Praj'er.  And  all  fathers,  mothers,  masters,  and  mis- 
tresses shall  cause  their  children,  servants,  or  appren- 
tices, which  have  not  learned  the  catechism,  to  come 
to  the  church,  at  the  time  appointed,  obediently  to 
hear,  and  to  be  ordered  by  the  minister,  until  they 
have  learned  the  same.  And  if  any  of  the  said  fathers, 
mothers,  masters,  and  mistresses,  children,  servants,  or 
apprentices  shall  neglect  their  duties,  as  the  one  sort, 
in  not  causing  them  to  come  ;  and  the  other,  in  refusing 
to  learn,  as  aforesaid,  they  shall  be  censured  by  the 
courts  in  those  places  holden.  And  the  Act  to  take 
beginning  on  Easter  next."  ' 

Article  XL  ' '  Ministers  shall  not  give  themselves  to 
excess  in  drinking  or  riot,  spending  their  time  idly,  by 
day  or  night,  playing  at  dice,  cards,  or  any  other  un- 
lawful game  ;  but,  at  all  times  convenient,  they  shall 
hear  or  read  somewhat  of  the  Holy  Scriptures  ;  or  shall 
occupy  themselves  with  some  other  honest  study  or 
exercise  ;  always  doing  the  things  which  shall  apper- 
'  Ibid.,  pp.  156,  157. 


lo  The  Colonies. 


tain  to  honesty,  and  endeavor  to  profit  the  church 
of  God  ;  always  having  in  mind  that  they  ought  to 
excel  all  others,  in  purity  of  life,  and  should  be  ex- 
amples to  the  people  to  live  well  and  Christianly."  * 

Article  XIV.  "  The  Governor  and  Council,  together 
with  the  burgesses,  in  the  present  Grand  Assembly, 
upon  the  petition  of  the  ministers  within  this  colony, 
have  taken  into  their  consideration  by  what  way  there 
might  be  a  sufficient  means  allowed  unto  the  said  min- 
isters for  their  better  subsistence  and  encouragement  in 
their  ministry  ;  and  thereupon,  have  ordained  and 
enacted  that  there  shall  be  paid,  unto  the  said  minis- 
ters, the  former  allowance  of  ten  pounds  of  tobacco,  and 
a  bushel  of  corn,  in  such  manner  as  formerly  hath  been 
done  ;  and,  because  of  the  low  rates  of  tobacco,  at  this 
present,  it  is  further  granted  and  ordered,  that  there 
shall  be  likewise  due  to  the  ministers,  from  the  first 
day  of  March  next  ensuing,  the  20th  calf,  the  20th  kid 
of  goats,  and  the  20th  pig,  throughout  all  plantations 
within  this  colony  ,  .  .  and  this  Act,  to  continue 
in  force  until  the  next  meeting  of  the  General  Assembly, 
at  which  time  there  may  fall  out  just  cause  of  alteration, 
either  by  the  advancement  of  tobacco,  or  some  other 
means,  for  that  formerly  the  ancient  allowance  of  ten 
pounds  of  tobacco  and  a  bushel  of  corn  hath  been  a 
sufficient  proportion  for  their  maintenance  in  their 
calling.     .     .     . 

"And  no  planter  or  parishioner  may  neglect  the 
bringing  of  the  tobacco  or  corn,  upon  the  penalty,  that 
if  any  make  default,  they  shall  forfeit  double  the  quan- 
tity of  the  tobacco  and  corn,  levied  by  distress,  by 
authorit}'  from  the  commander  ;  and  likewise,  by  dis- 
tress, all  arrearages  of  tobacco  and  corn  due  to  the 
1  Ibid.,  p.  158, 


Virginia.  1 1 

minister  as  duties,  shall,  or  may  be  recovered  by  virtue 
of  this  order  of  this  Assembly.  And  if  the  church- 
wardens shall  fail  in  the  execution  of  their  office  hereby 
enjoined,  then  the  commander  shall  take  order  that  it 
be  levied  by  distress  out  of  the  church-wardens'  goods 
and  chattels." 

Article  XV.  "  It  is  ordained  and  enacted,  that  in  all 
such  places  where  any  churches  are  wanting  or  de- 
cayed, the  inhabitants  shall  be  tied  to  contribute 
towards  the  building  of  a  church  or  repairing  any  de- 
cayed church  ;  the  commissioners,  together  with  the 
ministers,  church-wardens,  and  chief  of  the  parish,  to 
appoint,  both  the  most  convenient  place  for  all  parts  to 
assemble  together,  and  also,  to  hire  and  procure  any 
workmen,  and  order  such  necessaries  as  are  required  to 
be  done  in  such  works.  This  they  are  to  effect  before 
the  feast  of  the  nativity  of  our  Savior  Christ,  or  else 
the  said  commissioners,  if  the}^  be  deficient  in  their 
duties,  to  forfeit  fifty  pounds  in  money,  to  be  employed 
as  the  whole  body   of  the    Assembly  shall  dispose. 

Article  XVIII.  "It  is  ordered  that  all  the  council 
and  burgesses  of  the  Assembly  shall,  in  the  morning, 
be  present  at  divine  service,  in  the  room  where  they 
sit,  at  the  third  beating  of  the  drum,  an  hour  after  sun- 
rise, upon  the  penalty  of  one  shilling  to  the  benefit  of 
the  marshall  of  James  City.     .     .     ."  ' 

The  Grand  Assembly  of  1642-43  adopted  the  follow- 
ing, viz.  : 

Act  XXXV.    "  Be  it  also  enacted  and  confirmed,  for 

the  better  observance  of  the  Sabbath,  that  no  person  or 

persons  shall  take  a  voyage  upon  the  same,  except  it 

be  to  church  or  for  other  causes  of  extreme  necessity, 

'  Ibid.,  p.  162. 


12  The   Colonies. 


upon  the  penalty  of  the  forfeiture,  for  such  offence,  of 
twenty  pounds  of  tobacco,  being  justly  convicted  for 
the  same. 

"  Be  it  further  enacted  and  confirmed,  for  the  better 
observance  of  the  Sabbath,  and  for  the  restraint  of 
divers  abuses,  committed  in  the  colony,  by  unlawful 
shooting  on  the  Sabbath  daj^  as  aforesaid,  unless  it 
shall  be  for  the  safety  of  his  or  their  plantation  or  corn- 
fields, or  for  defence  against  the  Indians,  he  or  they,  so 
offending,  shall  forfeit  for  his  or  their  first  offence, 
being  thereof  lawfully  convicted,  if  he  be  a  freeman, 
the  quantity  of  twenty  pounds  of  tobacco  ;  and,  if  a 
servant,  to  be  punished  at  the  discretion  of  his  master. 
And  if  masters  of  any  such  servants  be  remiss  and 
negligent  in  the  punishment  of  his  servant  for  the 
offence  aforesaid,  he  shall  be  liable  to  the  forfeiture  of 
twenty  pounds  of  tobacco,  being  justly  convicted  for 
the  same."  ' 

Act  lyl.  "  Whereas,  It  was  enacted,  at  an  Assembly 
in  January,  1641  .  .  .  that  it  should  not  be  law- 
ful, under  the  penalty  aforesaid  [forfeiture  of  one 
thousand  pounds  of  tobacco]  for  any  popish  priest,  that 
shall  hereafter  arrive,  to  remain  above  five  days,  after 
warning  given  for  his  departure,  by  the  Governor  or 
commander  of  the  place  where  he  or  they  shall  be,  if 
wind  and  weather  hinder  not  his  departure  ;  and  that 
the  said  Act  should  be  in  force  ten  days  after  the  pub- 
lication thereof  at  James  City,  this  presetit  Grand 
Assembly,  to  all  intents  and  purposes,  doth  hereby 
confirm  the  same."  ^ 

Act  LXIV.  "  For  the  preservation  of  the  purity  of 
doctrine  and  unity  of  the  church,  it  is  hereby  enacted 
that  all  ministers,  whatsoever,  which  shall  reside  in 
Wbid., -p.  261.  ^  Ibid.,  p.  26S. 


1 


Virginia.  1 3 


the  colony,  are  to  be  conformable  to  the  orders  and 
constitutions  of  the  Church  of  England,  and  the  laws 
therein  established  ;  and  not,  otherwise,  to  be  admitted 
to  teach  or  preach,  publicly  or  privately.  And  that 
the  Governor  and  Council  do  take  care  that  all  non- 
conformists, upon  notice  of  them,  shall  be  compelled 
to  depart  the  colony  with  all  convenience."  ' 

The  Assembly  of  1659-60  adopted  the  following  Act 
entitled  An  Act  for  the  Supprcssmg  the  Qtcakcrs,  viz.  : 

"  Uliereas,  There  is  an  unreasonable  and  turbulent 
sort  of  people,  commonly  called  Quakers,  who,  contrary 
to  the  laws,  do  daily  gather  unto  them  unlawful  as- 
semblies and  congregations  of  people,  teaching  and 
publishing  lies,  miracles,  false  visions,  prophecies,  and 
doctrines,  which  have  influence  upon  the  community 
of  men,  both  ecclesiastical  and  civil,  endeavoring  and 
attempting  thereby  to  destroy  religion,  laws,  com- 
munities, and  all  bonds  of  civil  society,  leaving  it 
arbitrary  to  every  vain  and  vicious  person  whether  men 
shall  be  safe,  laws  established,  offenders  punished,  and 
governors  rule ;  hereby  disturbing  the  public  peace 
and  just  interest  :  to  prevent  and  restrain  wdiich  mis- 
chief, 

"  It  is  enacted  that  no  master  or  commander  of  any 
ship  or  other  vessel,  do  bring  into  this  colony  any  per- 
son or  persons  called  Quakers,  under  the  penalty  of  one 
hundred  pounds  sterling,  to  be  levied  upon  him  and 
his  estate,  by  order  of  our  Governor  and  Council,  as 
the  commissioners  in  the  several  counties  where  such 
ships  shall  arrive.  That  all  such  Quakers  as  have 
been  questioned,  or  shall  hereafter  arrive,  shall  be 
apprehended  wheresoever  they  shall  be  found,  and 
they  be  imprisoned,  without  bail  or  mainprise,  till 
'  Ibid.,  p.  277. 


14  The  Colonies. 


they  do  abjure  this  country  or  put  in  security  with  all 
speed  to  depart  the  colony  and  not  return  again.  And 
if  they  should  dare  to  presume  to  return  hither,  after 
such  departure,  to  be  proceeded  against,  as  contemners 
of  the  law  and  magistracy,  and  punished  accordingly, 
and  caused  again  to  depart  the  country.  And  if  they 
should  the  third  time  be  so  audacious  and  imprudent 
as  to  return  hither,  to  be  proceeded  against  as  felons. 
That  no  person  shall  entertain  any  of  the  Quakers  that 
have  heretofore  been  questioned  by  the  Governor  and 
Council,  or  which  shall  hereafter  be  questioned,  or 
permit,  in  or  near  his  house,  any  assemblies  of  Quakers, 
in  the  like  penalty  of  one  hundred  pounds  sterling. 
That  commissioners  and  officers  are  hereby  required 
and  authorized,  as  they  will  answer  the  contrary  at 
their  peril,  to  take  notice  of  this  Act,  to  see  it  fully 
effected  and  executed.  And  that  no  persons  do  pre- 
sume, on  their  peril,  to  dispose  or  publish  their  books, 
pamphlets,  or  libels,  bearing  the  titles  of  their  tenets 
and  opinions. ' '  ' 

The  Assembly  of  1661-62  enacted,  "That,  for  the 
preservation  of  the  purity  and  unity  of  doctrine  and 
discipline  in  the  church,  and  the  right  administration 
of  the  sacraments,  no  minister  be  admitted  to  officiate 
in  this  countiy,  but  such  as  shall  produce  to  the  Gov- 
ernor a  testimonial  that  he  hath  received  his  ordination 
from  some  bishop  in  England,  and  shall  then  subscribe 
to  be  conformable  to  the  orders  and  constitutions  of  the 
Church  of  England  and  the  laws  there  established, 
upon  which  the  Governor  is  hereby  requested  to  induct 
the  said  minister  into  any  parish  that  shall  make 
presentations  of  him  ;  and,  if  any  other  person,  pre- 
tending himself  a  minister,  shall,  contrary  to  this  Act, 
*  Ibid.,  p.  532, 


Virginia,  1 5 

presume  to  teach  or  preach  pubHcly  or  privately,  the 
Governor  and  Council  are  hereby  desired  and  era- 
powered  to  suspend  and  silence  the  person  so  offending  ; 
and,  upon  his  obstinate  persistence,  to  compel  him  to 
depart  the  country  with  the  first  conveniency,  as  it  hath 
been  formerly  provided  by  the  77th  Act,  made  at  James 
City,  the  second  of  March,  1642.' 

Act  III.  "  Whereas  many  schismatical  persons,  out 
of  their  averseness  to  the  orthodox  established  religion, 
or  out  of  the  new-fangled  conceits  of  their  own  hereti- 
cal inventions,  refuse  to  have  their  children  baptized, 
Be  it  therefore  enacted,  b}-  the  authority  aforesaid,  that 
all  persons  that,  in  contempt  of  the  divine  sacrament 
of  baptism,  shall  refuse,  when  they  may  carry  their 
child  to  a  lawful  minister  in  that  country  to  have  them 
baptized,  shall  be  amerced  two  thousand  pounds  of 
tobacco  ;  half  to  the  informer,  half  to  the  public."  ^ 

The  Assembly,  September  12,  1663,  adopted  the 
following  resolution,  viz.  : 

"  Whereas,  Mr.  John  Hill,  high  sheriff  of  L^wer 
Norfolk,  hath  represented  to  the  House  that  Mr.  John 
Porter,  one  of  the  burgesses  of  that  county,  was  loving 
to  the  Quakers,  and  stood  well  affected  towards  them, 
and  had  been  at  their  meetings,  and  was  so  far  an  Ana- 
baptist as  to  be  against  the  baptizing  of  children,  upon 
which  representation  the  said  Porter  confessed  himself 
to  have  and  be  well  affected  to  the  Quakers,  but  con- 
ceived his  being  at  their  meetings  could  not  be  proved, 
upon  which  the  oaths  of  allegiance  and  supremacy  were 
tendered  to  him,  which  he  refused  to  take  ;  whereupon 
it  is  ordered  that  the  said  Porter  be  dismissed  this 
House."  ' 

This   Assembly   made    the    law    against    Quakers, 

'  Ibid.,  vol.  ii.,  p.  46.         "  Ibid.,  p.  163.         ^  Ibid.,  p.  198. 


1 6  Tlic  Colonies. 


against  persons  entertaining  them,  and  masters  of  ships 
bringing  them  into  the  country,  more  specific  and 
stringent,  and  included  "  other  separatists"  in  its  pro- 
hibitions and  penalties.' 

The  Assembly  of  1667-68,  taking  it  into  serious  con- 
sideration that  "the  many  sins  of  this  country  may 
justly  provoke  the  anger  of  Almighty  God  against  us, 
and  draw  down  his  judgments  upon  us  unless  diverted 
by  a  timely  and  hearty  repentance,"  appointed  the 
27th  day  of  August  to  be  set  apart  as  a  day  of  humilia- 
tion, "  strictly  requiring  all  persons  on  that  day  to 
repair  to  their  respective  churches,  with  fasting  and 
prayers,  to  implore  God's  mercy,  and  deprecate  the 
evils  justly  impending  upon  us  "  ;  and  enacted,  "  that 
if  any  person  or  persons,  in  contempt  thereof,  shall  be 
found  on  that  day  working,  gaming,  or  drinking 
(works  of  necessity  only  excepted)  he  or  they,  so 
oflFending,  upon  presentment  of  the  church- warden,  and 
proof  thereof  made  to  the  vestry,  shall  be  fined  by  them 
one  hundred  pounds  of  tobacco. "  ^ 

The  IvOrd's  Commissioners  for  Foreign  Plantations 
submitted  certain  "Enquiries  to  the  Governor  of 
Virginia,"  the  twenty-third  of  which  was,  "What 
course  is  taken  about  instructing  the  people,  within 
your  government,  in  the  Christian  religion  ;  and  what 
provision  is  there  made  for  the  paying  of  your 
ministry  ? ' ' 

The  answer  returned  by  Sir  William  Berkeley,  then 
Governor  (1671),  was  as  follows,  viz.  : 

' '  The  same  course  that  is  taken  in  England  out  of 

towns  ;  every  man,  according  to  his  ability,  instructing 

his  children.     We  have  forty-eight  parishes,  and  our 

ministers  are  well  paid,  and  by  my  consent  should  be 

^  Ibid.,  p.  180.  -  Ibid.,  p.  260. 


Virginia.  1 7 


better,  if  they  would  pray  oftener  and  preach  less.  But, 
of  all  other  commodities,  so  of  this,  the  worst  are  sent 
us,  and  we  had  few  that  we  could  boast  of  since  the 
persecution  of  Cromwell's  tyranny  drove  divers  worthy 
men  hither.  But  I  thank  God,  there  are  no  free 
schools  nor  printing,  and  I  hope  we  shall  not  have 
these  hundred  years,  for  learning  has  brought  dis- 
obedience, and  heresy,  and  sects  into  the  world,  and 
printing  has  divulged  them  and  libels  against  the  best 
government.     God  keep  us  from  both."  ' 

The  General  Assembly  of  1691  enacted  :  "  That  no 
person  or  persons  whatsoever  shall,  from  henceforth, 
swear,  curse,  or  profane  God's  holy  name  ;  and  if  any 
person  or  persons  shall  offend  therein,  and  shall  thereof 
be  convicted,  by  the  oath  of  two  witnesses,  or  by  con- 
fession of  the  party,  then  every  such  offender  shall, 
for  every  time  so  offending,  forfeit  and  pay  the  sum 
of  one  shilling  ;  and  forasmuch  as,  nothing  is  more 
acceptable  unto  God  than  the  true  and  sincere  service 
and  worship  of  him,  according  to  his  holy  will,  and 
that  the  holy  keeping  of  the  Lord's  day  is  a  principal 
part  of  the  true  service  of  God,  which,  in  very  many 
places  of  the  dominion,  hath  been  and  is  now  profaned 
and  neglected  by  a  disorderly  sort  of  people  ; 

"  Be  it  enacted  .  .  .  That  there  shall  be  no  meet- 
ings, assemblies,  or  concourse  of  people  out  of  their  own 
parishes  on  the  Lord's  day  ;  and  no  person  or  persons 
whatsoever  shall  travel  upon  the  said  day  ;  and  that  no 
other  thing  or  matter  whatsoever  be  done  on  that  day 
which  tends  to  the  profanation  of  the  same ;  but  that 
the  same  be  kept  holy  in  all  respects,  upon  pain,  that 
every  person  and  persons  so  offending,  and  being  con- 
victed as  aforesaid,  shall  lose  and  forfeit  twenty  shil- 
'  Ibid.,  p.  517. 


The  Colonies. 


lings.  ...  If  ofiFender  or  oflFenders  be  unable  to  pay 
the  fine,  to  be  committed  to  the  stocks  for  every  offence, 
there  to  remain  for  the  space  of  three  full  hours."  ' 

The  following  Act,  entitled.  An  Act  for  the  7nore 
effectual  suppressing  of  Blasphemy ,  Swearing,  Cursing, 
Drunke7iness,  and  Sabbath-breaking,'^  was  adopted  by 
the  General  Assembly  of  1699,  viz.: 

"  Whereas,  Notwithstanding  many  good  and  whole- 
some laws  already  made  for  the  punishment  and  re- 
straining of  vice,  many  wicked,  blasphemous,  disso- 
lute, and  vicious  persons  still  continue  their  impious 
and  abominable  practices,  and  avow  their  horrid  and 
atheistical  principles,  greatly  tending  to  the  dishonor 
of  Almighty  God,  and  may  prove  destructive  to  the 
peace  and  welfare  of  his  Majesty's  colony  and  do- 
minion, for  the  more  effectual  suppression  of  the  said 
detestable  crimes  ; 

"Be  it  enacted, — That  if  any  person  or  persons, 
brought  up  in  the  Christian  religion,  shall,  by  writing, 
printing,  teaching,  or  advisably  speaking,  deny  the 
being  of  a  God,  or  the  Holy  Trinity,  or  shall  assert  or 
maintain  that  there  are  more  Gods  than  one,  or  shall 
deny  the  Christian  religion  to  be  true,  or  the  Holy 
Scriptures  of  Old  and  New  Testament  to  be  of  divine 
authority,  and  be  thereof  lawfully  convicted,  upon  in- 
dictment or  information  in  the  general  court  of  this  his 
Majesty's  colony  and  dominion,  by  the  oaths  of  two  or 
more  creditable  witnesses,  such  person  or  persons,  for 
the  first  offence,  shall  be  adjudged  incapable  or  dis- 
abled in  law,  to  all  intents  and  purposes  whatsoever, 
to  hold  or  enjoy  any  ofiice  or  employment,  ecclesiasti- 
cal, civil,  or  military,  or  any  part  of  them,  or  any 
profit  or  advantage  to  them  appertaining,  or  any  of 
'  Ibid.,  vol.  iii.,  p.  72. 


Virginia.  1 9 

them.  And  if  any  person  or  persons,  so  convicted  as 
aforesaid,  shall,  at  the  time  of  his  or  their  conviction, 
enjo}'  or  possess  any  office,  place,  or  employment,  such 
office,  place,  or  employment  shall  be  \oid,  and  is  hereby 
declared  void.  And  if  such  person  or  persons  shall  be 
a  second  time  lawfullj^  convicted  as  aforesaid,  that  then 
he  or  the}^  shall,  from  henceforth,  be  disabled  to  sue, 
prosecute,  plead,  or  use  any  action  or  information  in 
any  court  of  law  or  equity,  or  to  be  guardian  to  any 
child,  or  to  be  executor  of  any  person,  or  to  bear  any 
office  ecclesiastical,  civil,  or  military,  forever  within 
this  his  Majesty's  colony  and  dominion,  and  shall  also 
suffer,  from  the  time  of  such  conviction,  three  years 
imprisonment  without  bail  or  mainprise. 

"  Be  it  further  enacted, — That  if  any  person  or  persons 
shall  profanely  swear  or  curse,  or  shall  be  drunk,  he  or 
they  so  offending,  for  every  such  offence,  being  thereof 
convicted  by  the  oath  of  one  or  more  witnesses  (which 
oath  any  justice  of  the  peace  is  hereby  empowered  and 
required  to  administer),  or  by  confession  before  one  or 
more  justice  or  justices  of  the  peace,  in  the  county 
where  such  offence  shall  be  committed,  shall  forfeit  and 
pay  the  sum  of  five  shillings  or  fifty  pounds  of  tobacco, 
for  every  such  offence  ;  or  if  the  said  offence  or  offences  be 
committed  in  the  presence  or  hearing  of  one  or  more  jus- 
tice or  justices  of  the  peace,  or  in  any  court  of  record,  in 
this  his  Majesty's  colony  and  dominion, the  same  shall  be 
sufficient  conviction  without  any  other  evidence.  And 
the  said  offender,  upon  such  conviction,  shall  forfeit 
and  pay  the  sum  of  five  shillings  or  fifty  pounds  of 
tobacco,  for  every  such  offence,  which  said  sum  or  sums 
shall  be  paid  to  the  church  wardens  of  that  parish 
where  the  offence  shall  be  committed,  who  shall  be  ac- 
countable for  the  same  to  the  vestry  of  such  parish,  to 


20  TJic   Colonies. 


the  use  of  the  poor  of  the  parish.  And  if  any  person 
or  persons  shall  refuse  to  make  present  payment,  or 
give  sufficient  caution  for  the  payment  of  the  same,  at 
the  levying  of  the  next  parish  levy,  after  the  said 
offence  committed,  then  the  said  fines  and  penalties 
shall  be  levied  upon  the  goods  of  such  person  or  per- 
sons by  warrant  or  precept  from  any  justice  of  peace 
before  whom  the  same  conviction  shall  be,  which  war- 
rant may  be  directed  to  the  sheriff  of  the  county  or  to 
the  constable,  in  his  respective  precincts,  to  be  appraised 
and  valued  as  another  distress.  And  if  the  offender  or 
offenders  be  not  able  to  pay  the  said  sum  or  sums,  then 
he,  or  they,  shall  have  or  receive  ten  lashes  on  his,  her, 
or  their  bare  back,  well  laid  on,  for  every  such  offence. 

' '  And  for  the  prevention  of  Sabbath  breaking  ;  Be  it 
enacted — That  if  any  person  or  persons,  of  the  age  of 
twenty-one  years  or  more,  do  neglect  or  refuse  to  resort 
to  their  parish  church  or  chapel  once  in  two  months,  to 
hear  divine  service  upon  the  Sabbath  day,  every  person 
or  persons  so  neglecting  or  refusing,  and  being  thereof 
lawfully  convicted,  by  confession  or  otherwise,  before 
one  or  more  justice  or  justices  of  the  peace  where  such 
offences  shall  be  committed,  shall  forfeit  and  pay  for 
every  such  offence  the  sum  of  five  shillings  or  fift}' 
pounds  of  tobacco,  to  be  paid  to  the  church-wardens 
of  that  parish  wherein  the  said  offence  shall  be  com- 
mitted, who  shall  be  accountable  for  the  same  to  the 
vestry  for  the  use  of  the  said  parish. 

"  Provided  always,  that  if  any  person  or  persons  can 
show  or  make  known  to  their  justice  or  justices  such 
cause  or  causes  of  his,  her,  or  their  absence  from 
church,  at  any  time  or  times,  as  the  said  justice  or  jus- 
tices shall  adjudge  true  and  reasonable,  then  the  said 
pains  and  penalties  shall  be  remitted  to  such  person  or 


Virginia.  2 1 

persons  for  such  time  and  times  and  no  longer,  anything 
in  this  Act  to  the  contrary  notwithstanding. 

"  Provided  always,  that  if  any  person  or  persons  dis- 
senting from  the  Church  of  England,  being  every  way 
qualified,  according  to  one  Act  of  Parliament,  made  in 
the  first  year  of  the  reign  of  our  sovereign  lord  the 
King  that  now  is,  and  the  late  Queen  Mary,  of  blessed 
memory,  entitled.  An  Act  for  Exempting  their  Majesties' 
Protestant  Stibjects,  Dissenting  front  the  Church  of  Eng- 
land^ from  the  Penalties  of  Certain  Laws,  shall  resort  and 
meet  at  any  congregation  or  place  of  religious  worship, 
permitted  and  allowed  by  the  said  Act  of  Parliament, 
once  in  two  months,  that  then  the  said  penalties  and 
forfeitures  inforced  by  the  Act  for  neglecting  or  refus- 
ing to  resort  to  their  parish  church  or  chapel,  as  afore- 
said, shall  not  be  taken  to  extend  to  such  person  or 
persons,  anything  in  this  Act  to  the  contrary  notwith- 
standing." ' 

In  the  fifth  revisal  of  the  laws  of  the  colony,  which 
was  made  by  the  General  Assembly  in  1705,  the  fore- 
going law  was  re-enacted  as  Chapter  XXX.,  with  the 
following  additions,  viz.  : 

' '  The  person  brought  up  in  the  Christian  religion  who 
should  by  writing,  printing,  teaching,  or  advisedly 
speaking,  deny  the  being  of  God,  etc.,  should  be  liable 
to  the  additional  disability  of  being  incapable  of  acting 
as  administrator  of  any  person,  and  of  making  any 
deed  of  gift  or  legacy. 

"  Provided  alwaj^s,  that  every  prosecution,  by  virtue 
of  this  Act  for  swearing,  cursing,  or  for  being  drunk, 
shall  be  made  within  two  months  after  the  offence 
committed,  and  not  afterward." 

The  limit  allowed  for  absence  from  church  was  made 
'  Ibid.,  p.  16S. 


22  The  Colonies. 


to  be  one  month  instead  of  two  months,  and  all  persons 
being  of  the  age  of  twenty-one  years  or  upwards,  who 
' '  shall  not  when  there  (at  church)  in  a  decent  and 
orderly  manner,  continue  until  the  said  service  is 
ended  ;  and  if  any  person  shall,  on  that  day,  be  present 
at  any  disorderly  meeting,  gaming,  or  tippling,  or  shall, 
on  the  said  day,  make  any  journey  or  travel  upon  the 
road,  except  to  and  from  church  (cases  of  necessity  and 
charity  excepted)  or  shall,  on  the  said  day,  be  found 
working  in  their  com  or  tobacco,  or  any  other  labor  of 
their  ordinary  calling  other  than  is  necessary  for  the 
sustenance  of  man  and  beast, — every  person  failing  or 
making  default  in  any  of  these  premises  (so  that  prose- 
cution be  made  within  two  months  after  such  default) 
shall  forfeit  and  pay  for  every  such  offence  the  sum  of 
five  shillings  or  fifty  pounds  of  tobacco," 

"And  be  it  further  enacted,— That  this  Act  shall  be 
publicly  read  two  several  times  in  the  year  in  all  par- 
ish churches  and  chapels  within  this  colony  by  the 
minister,  clerk,  or  reader,  of  each  parish,  immediately 
after  divine  service  ;  that  is  to  say,  on  the  first  or 
second  Sunday  in  April ;  and  on  the  first  or  second 
Sunday  in  September,  under  the  penalty  of  twenty 
shillings  for  every  such  omission  and  neglect ;  and  the 
church-wardens  of  every  parish  are  hereby  required  to 
provide  a  copy  of  this  Act  at  the  charge  of  the  parish. ' '  ' 

An  Act  of  the  Assembly  of  1661,  Chapter  III.,  re- 
quired "  that  there  be  a  glebe  laid  out  in  every  parish, 
and  a  convenient  house  built  for  the  abode  of  the  min- 
ister, and  that  a  maintenance  be  provided  for  him  which 
shall  be  worth  eighty  pounds  per  annum,  besides  his 
perquisites  and  glebe." 

An  Act  of  the  Assembly  of  1748,  Chapter  XXXIV., 
"^Jbid.,  pp.  358,  362. 


Plymo2ith.  23 

Sec.  5,  directs  that  the  glebe  shall  contain  two  hun- 
dred acres  of  good  land,  at  least ;  and  that  there  shall 
be  built  on  it  a  convenient  mansion  house,  kitchen, 
barn,  stable,  dair}^  meat  house,  corn  house,  and  gar- 
den ;  the  expense  of  which  is  to  be  levied  on  the  tith- 
able  persons  of  the  parish.' 

In  the  case  of  Godwi?i  et  al  v.  Lunan,  Godwin  et  al, 
vestrj-men  of  the  upper  parish  of  Nansemond,  filed  a 
libel  in  the  General  Court,  as  a  court  of  ecclesiastical 
jurisdiction,  against  lyiinan,  setting  forth  that  he  was 
of  evil  fame,  profligate  in  manners,  much  addicted  to 
drunkenness,  often  drunk  at  church,  unable  to  go 
through  the  service,  to  baptize  or  marry,  officiated  in 
ridiculous  apparel ;  was  a  disturber  of  the  peace,  quar- 
relling and  fighting,  a  common  profane  swearer  ;  that 
he  exposed  his  private  parts,  solicited  negro  and  other 
women  to  commit  fornication  and  adultery  with  him  ; 
declared  that  he  did  not  believe  in  the  revealed  religion 
of  Christ,  that  he  cared  not  of  what  religion  he  was,  so 
he  got  the  tobacco  ;  nor  what  became  of  the  flock,  so 
he  got  the  fleece." 

Objection  was  made  by  the  defendant  to  the  juris- 
diction of  the  Court,  but  the  Court  decided  that  it  was 
possessed  of  jurisdiction  ;  and  that  as  an  ecclesiastical 
court,  it  might  proceed  to  censure  or  deprive  the  de- 
fendant." 

The  Church  of  England  continued  to  be  the  estab- 
lished church  of  Virginia  ;  and  the  laws  regulating  the 
religious  life  of  the  people  continued  without  essential 
modification  to  be  in  force  throughout  the  colonial 
period. 

2.  Plymouth. — The  next  settlement  after  that  on 
the  James  River  was  made  by  the  Pilgrims,  who  landed 
'  Jefferson's  ^^/>c»r/5,  pp.  104,  105.  ^  Ibid.,  p.  96. 


24  The  Colonics. 


on  Plymouth  Rock,  December  ii,  1620.  Before  leav- 
ing Europe  they  obtained  a  grant  of  land  from  the 
London  Company,  but  afterwards  decided  to  settle  in 
the  territory  of  the  Plymouth  Company.  They  ob- 
tained several  patents  from  that  company,  but  failed  to 
obtain  confirmation  of  them  by  the  King.  On  the 
nth  day  of  November,  1620,  on  board  the  Mayflower, 
they  made  the  following  agreement :  "In  the  name  of 
God,  amen.  We  whose  names  are  underwritten,  the 
loyal  subjects  of  our  dread  sovereign  lord  King  James, 
by  the  grace  of  God  of  Great  Brittain,  France,  and  Ire- 
land, King,  Defender  of  the  faith,  etc.,  having  under- 
taken for  the  glory  of  God,  and  the  advancement  of 
the  Christian  faith,  and  the  honor  of  our  King  and 
country,  a  voyage  to  plant  the  first  colony  in  the 
northern  parts  of  Virginia ;  do,  by  these  presents,  sol- 
emnly and  mutually,  in  the  presence  of  God  and  one 
another,  covenant  and  combine  ourselves  into  a  civil 
body  politic,  for  our  better  ordering  and  preservation, 
and  furtherance  of  the  ends  aforesaid,  and  by  virtue 
hereof  to  enact,  constitute,  and  frame  such  just  and 
equal  laws,  ordinances,  acts,  constitutions,  and  ofiices, 
from  time  to  time,  as  shall  be  thought  most  meet  and 
convenient  for  the  general  good  of  the  colony,  unto 
which  we  promise  all  due  subjection  and  obedience. 
In  witness  whereof  we  have  hereunder  subscribed  our 
names,  at  Cape  Cod,  the  eleventh  of  November  (O.  S.) 
in  the  year  of  the  reign  of  our  sovereign  lord  King 
James  of  England,  France,  and  Ireland,  the  eighteenth, 
and  of  Scotland  the  fifty-fourth.  Anno  Dom.  1620." 
This  colony,  partly  from  a  feeling  that  it  was  under 
some  obligation  to  recognize  the  jurisdiction  of  the 
lyondon  Company,  which  was  known  to  favor  the 
Church  of  England,  and  partly  from  conviction  forced 


PlymoiUh.  2  5 

upou  them  by  bitter  experience,  at  first  kept  their  civil 
and  ecclesiastical  organizations  apart ;  but  within  a 
little  over  thirty  years  from  the  time  of  their  landing, 
the  Church  is  found  united  to  the  State  and  supported 
by  taxes  upon  the  people. 

The  belief,  then  almost  universal,  that  civil  govern- 
ment had  not  only  a  religious  character,  but  a  religious 
function,  made  its  appearance  very  early  in  the  history 
of  the  colony.  It  was  enacted  by  the  General  Court, 
June  10,  1650,  "that  whosoever  shall  profane  the 
I^ord's  day,  by  doing  servile  work,  or  any  like  abuses, 
shall  forfeit,  for  everj-  such  default,  ten  shillings,  or  be 
whipped." 

It  was  enacted  on  June  6,  165 1,  "that  whatsoever 
person  or  persons  shall  neglect  the  frequenting  the 
public  worship  of  God,  that  is  according  to  God,  in 
the  places  where  they  live  ;  or  do  assemble  themselves, 
upon  anj'  pretence  whatsoever,  contrary  to  God  and 
the  allowance  of  the  government,  tending  to  the  sub- 
version of  religion  and  churches  ;  or  palpable  profana- 
tion of  God's  holy  ordinances;  being  duly  convicted, 
viz.  :  every  one  that  is  a  master  or  dame  of  a  family,  or 
any  other  person  at  their  own  disposing,  to  pay  ten 
shillings  for  every  such  default."  ' 

In  1665  the  following  law  was  enacted,  viz.  : 

' '  Whereas,  complaint  is  made  to  the  Court  of  great 
abuse,  in  sundry  towns  of  this  jurisdiction,  by  persons 
there  behaving  themselves  profanely,  by  being  with- 
out doors  at  the  meeting  house,  on  the  Lord's  day,  in 
time  of  exercise,  and  there  misdemeaning  themselves 
by  jesting,  sleeping,  or  the  like  ;  It  is  enacted  by  the 
court,  and  hereby  ordered  that  the  constables  of  each 
township  of  this  jurisdiction,  shall,  in  their  respective 
'  Plymouth  Colonial  Records,  vol.  xi.,  p.  57. 


26  TJie  Colonies, 


towns,  take  special  notice  of  such  persons,  and  to 
admonish  them ;  and,  if  notwithstanding,  they  shall 
persist  in  such  practices,  that  he  shall  set  them  in  the 
stocks,  and  in  case  this  will  not  reclaim  them,  that  they 
return  their  names  to  the  Court."  ' 

In  July,  1669,  it  was  enacted,  that  "unnecessary 
violent  riding  on  the  I,ord's  day  "  should  be  reported 
to  the  next  court  after  the  offence.  Also,  "that  any 
person  or  persons  that  shall  be  found  smoking  of  to- 
bacco, on  the  Lord's  day,  going  to,  or  coming  from  the 
meetings,  within  two  miles  of  the  meeting  house,  shall 
pay  twelve  pence,  for  every  such  default,  to  the  colony's 
use."'^ 

In  June,  1670,  the  following  was  enacted,  viz.  : 
"  For  the  further  prevention  of  the  profanation  of 
the  Lord's  day,  it  is  enacted,  by  the  Court  and  the 
authority  thereof,  that  the  selectmen  of  the  several 
towns  of  this  jurisdiction,  or  any  one  of  them,  may  or 
shall,  as  there  be  occasion,  take  with  him  the  constable 
or  his  deputy,  and  repair  to  any  house  or  place  where 
they  may  suspect  that  any  slothfully  do  lurk  at  home, 
or  get  together  in  companies,  to  neglect  the  public  wor- 
ship of  God,  or  profane  the  Lord's  day ;  and,  finding 
any  such  disorder,  shall  return  the  names  of  the  per- 
sons to  the  next  court ;  and  give  notice  also  of  any 
particular  miscarriage  that  they  have  taken  notice  of, 
that  it  may  be  inquired  into. ' '  ' 

In  1682  the  following  was  enacted,  viz.  : 
"  To  prevent  profanation  of  the  Lord's  day  by  for- 
eigners or  any  others,  unnecessarily  travelling  through 
our  towns  on  that  day  ;  It  is  enacted  by  the  Court  that 
a  fit  man,  in  each  town,  be  chosen  unto  whom  whoso- 
ever hath  necessity  of  travel  on  the  Lord's  day,  in  case 
^  Ibid.,  p.  214.  "Ibid.,  pp.  224,  225.  ^  Ibid.,  p.  22S, 


Massachitsctts  Bay.  27 

of  danger  of  death  or  such  necessitous  occasions,  shall 
repair,  and  making  out  such  occasions  satisfyingly  to 
him,  shall  receive  a  ticket  from  him  to  pass  on  about 
such  like  occasions,  which,  if  the  traveller  attend  not 
unto,  it  shall  be  lawful  for  the  constable  or  any  man 
that  meets  him,  to  take  him  up,  and  stop  him  luitil  he 
is  brought  before  authority,  or  pay  his  fine  for  such 
transgression,  as  by  law  in  that  case  is  provided.  And 
if  it  after  shall  appear  that  his  plea  was  false,  then  may 
he  be  apprehended  at  another  time,  and  made  to  pay 
his  fine  as  aforesaid.     ,     .     , 

"  It  is  enacted  that  none  shall  presume  to  attend  ser- 
vile work  or  labor,  or  attend  any  sports,  on  such  days 
as  are,  or  shall  be,  appointed  by  the  Court  for  humilia- 
tion by  fasting  and  prayer,  or  for  public  thanksgiving, 
on  penalty  of  five  shillings."  ' 

In  1 69 1  Plymouth  colony  was  united  with  the  colony 
of  Massachusetts  Bay. 

3.  Massachusetts  Bay. — A  charter  was  granted 
by  Charles  I.,  March  4,  1629,  to  Sir  Henry  Rosewell 
and  others,  making  them  a  body  politic,  by  the  name 
of  ' '  The  Governor  and  Company  of  the  Massachusetts 
Bay,  in  New  England,"  giving  them  the  territory  be- 
tween the  Charles  and  the  Merrimac  Rivers,  with  a 
margin  of  three  miles  beyond  both  of  these  limits.  In 
the  charter  it  is  said  that  authority  is  granted  to 
"establish  all  manner  of  wholesome  and  reasonable 
orders,  laws,  statutes,  and  ordinances  ...  for  the 
directing,  ruling,  and  disposing  of  all  other  matters  and 
things  whereby  our  said  people,  inhabitants  there,  may 
be  so  religiously,  peaceably,  and  civilly  governed,  as 
their  good  life  and  orderly  conversation  may  win  and 
incite  the  natives  of  the  country  to  the  knowledge  and 
'  Ibid.,  p.  258. 


28  The  Colonies. 


obedience  of  the  only  true  God,  and  Savior  of  man- 
kind, and  the  Christian  faith,  which,  in  our  royal  in- 
tention, and  the  adventurer's  free  profession,  is  the 
principal  end  of  this  plantation." 

This  colony,  in  1631,  three  years  after  the  arrival  of 
the  first  settlers,  enacted  that  ' '  to  the  end  the  body  of 
the  commons  may  be  preserved  honest  and  good  men,  it 
was  likewise  ordered  and  agreed  that,  for  time  to  come, 
no  man  shall  be  admitted  to  the  freedom  of  this  body 
politic  but  such  as  are  members  of  some  of  the  churches 
within  the  limits  of  the  same."  ' 

The  General  Court,  April  17,  1629,  adopted  the  fol- 
lowing action,  viz.  :  "  And  to  the  end  the  Sabbath  may 
be  celebrated  in  a  religious  manner,  we  appoint  that 
all  that  inhabit  the  plantation,  both  for  the  general 
and  particular  employments,  may  surcease  their  labor 
every  Saturday  throughout  the  year,  at  three  of  the 
clock  in  the  afternoon,  and  that  they  spend  the  rest  of 
that  day  in  catechising  and  preparation  for  the  Sab- 
bath, as  the  minister  shall  direct."  '"' 

On  September  6,  1638,  the  General  Court  adopted 
the  following,  viz. :  "  This  Court,  taking  into  considera- 
tion the  necessity  of  an  equal  contribution  to  all  com- 
mon charges  in  towns,  and  observing  that  the  chief 
occasion  of  the  defect  herein  ariseth  from  hence,  that 
many  of  those  who  are  not  freemen  nor  members  of 
any  church  do  take  advantage  thereby  to  withdraw 
their  help  in  such  voluntary  contributions  as  are  in  use. 

' '  It  is,  therefore,  hereby  declared  that  every  inhabi- 
tant in  any  town  is  liable  to  contribute  to  all  charges, 
both  in  church  and  commonwealth,  whereof  he  doth 
or  may  receive  benefit.     And  withal,  it  is  ordered  that 

'  Records  of  the  Colofiy  of  Massachusetts,  vol.  i.,  p.  87. 
*  Ibid.,  p.  395. 


Massachusetts  Bay.  29 

every  such  inhabitant  who  shall  not  voluntarily  con- 
tribute proportionably  to  his  ability,  with  other  persons 
of  the  same  town,  to  all  common  charges,  as  well  for 
upholding  the  ordinances  of  the  churches  as  otherwise, 
shall  be  compelled  thereto  by  assessment  and  distress, 
to  be  levied  by  the  constable  or  other  officer  of  the 
town,  as  in  other  cases."  ' 

Roman  Catholics  were  denied  toleration  in  the  colony 
by  the  charter.  In  1644,  Baptists,  who  should  openly 
condemn  or  oppose  the  baptizing  of  infants,  or  go  about 
secretly  to  seduce  from  the  approbation  or  use  thereof, 
were,  if  wilfully  and  obstinately  persistent  therein,  to 
be  sentenced  to  banishment. " 

In  1646,  the  following  law  wasenacted,  viz.  :  Chapter 
XXXIX.  Section  14.  "  Forasmuch  as,  the  open  con- 
tempt of  God's  word,  and  messengers  thereof,  is  the 
desolating  sin  of  civil  states  and  churches  ;  It  is  ordered 
that  if  any  Christian  (so-called)  within  this  jurisdiction, 
shall  contemptuously  behave  himself  towards  the  Word 
preached  or  the  messengers  thereof,  called  to  dispense 
the  same  in  any  congregation,  when  he  doth  faithfully 
exercise  his  service  and  office  therein,  according  to  the 
will  and  word  of  God,  either  by  interrupting  him  in  his 
preaching  or  by  charging  him,  falsely,  with  any  error  ; 
or,  like  a  son  of  Korah,  cast  upon  his  true  doctrine  or 
himself  any  reproach  to  the  dishonor  of  the  Lord  Jesus 
who  hath  sent  him,  and  to  the  disparagement  of  his 
holy  ordinance,  and  making  God's  ways  contemptible 
and  ridiculous,  that  every  such  person  or  persons 
(whatsoever  censure  the  church  may  pass),  shall  for 
the  first  scandal  be  convented  and  rebuked  openly  by 
the  magistrate  at  some  lecture,  and  bound  to  their  good 
behavior.  And  if  a  second  time  they  break  forth  into 
'  Ibid.,  pp.  240,  241.  '^  Ibid.,  vol.  ii.,  p.  85. 


30  The  Colonies. 


the  like  contemptuous  carriages,  they  shall  either  pay- 
five  pounds  to  the  public  treasury,  or  stand  two  hours 
openly  upon  a  block  or  stool,  four  feet  high,  on  a  lec- 
ture day,  with  a  paper  pinned  to  his  breast,  written  in 
capital  letters.  An  open  and  obstinate  contemner  of  GocV s 
holy  ordinances,  that  others  may  hear  and  be  ashamed 
of  breaking  out  into  the  like  wickedness. ' ' 

Section  15.  "Wheresoever  the  ministry  of  the 
Word  is  established,  according  to  the  order  of  the  gos- 
pel, throughout  this  jurisdiction,  every  person  shall 
duly  resort  and  attend  thereunto,  respectively,  upon  the 
Ivord's  days,  and  upon  such  public  fast  days,  and  days 
of  thanksgiving,  as  are  to  be  generally  held  by  the  ap- 
pointment of  authority.  And  if  any  person,  within 
this  jurisdiction,  shall,  without  just  and  necessary 
cause,  withdraw  himself  from  hearing  the  public  min- 
istry of  the  Word,  after  due  means  of  conviction  used, 
he  shall  forfeit,  for  his  absence  from  every  such  public 
meeting,  five  shillings. ' ' 

Section  14  required  that  a  convenient  habitation  for 
the  minister  be  provided  by  tax. 

On  November  4,  1646,  the  following  was  enacted, 
viz.  : 

"  Though  no  human  power  be  lord  over  the  faith 
and  conscience,  yet,  because  such  as  bring  in  damnable 
heresies,  tending  to  the  subversion  of  the  Christian 
faith  and  destruction  of  the  souls  of  men,  ought  to  be 
duly  restrained  from  such  notorious  impiety  ; 

"  It  is  therefore  ordered  and  decreed  by  this  Court, 
that  if  any  Christian,  within  this  jurisdiction,  shall  go 
about  to  subvert  or  destroy  the  Christian  faith  and 
religion,  by  broaching  or  maintaining  any  damnable 
heresy,  as  denying  the  immortality  of  the  soul ;  or  the 
resurrection  of  the  body  ;  or  any  sin,  to  be  repented  of 


Massachusetts  Bay.  31 

in  the  regenerate ;  or  any  evil,  done  by  the  outward 
man,  to  be  accounted  sin  ;  or  denying  that  Christ  gave 
himself  a  ransom  for  our  sins  ;  or  that  we  are  justified 
by  his  death  and  righteousness,  but  by  the  perfection 
of  our  own  works  ;  or  denying  the  morality  of  the 
fourth  Commandment ;  or  any  other  heresy  of  such 
nature  and  degree  ;  shall  pay  to  the  common  treasury, 
for  the  first  six  months,  twenty  shillings  a  month  ;  and 
if  any  person  shall  endeavor  to  seduce  others  to  the 
like  heresy  and  apostacy  from  the  faith  and  religion  of 
our  Lord  Jesus  Christ,  he  shall  forfeit  to  the  treasury 
for  every  several  offence  five  pounds."  ' 

In  1650  a  book,  published  by  William  Pyncheon, 
was,  by  order  of  the  Court,  burned  by  the  common 
hangman  in  Boston  Common.  The  book  was  entitled, 
Meritoriotcs  Price  of  Christ's  Redemption,  and  contro- 
verted the  orthodox  view  of  the  atonement.  Mr. 
Pyncheon  was  a  man  of  eminence  in  the  colony  ;  he 
had  come  over  with  John  Winthrop  ;  was  the  first 
treasurer  of  the  colony  and  chief  magistrate  of  Spring- 
field ;  but  he  was  deposed  from  his  magistracy  and  was 
required  to  attend  the  General  Court  at  Boston  and  re- 
port progress  from  time  to  time  in  his  conversion  to 
correct  views  of  the  atonement." 

In  1653  the  following  was  enacted,  viz.: 
' '  Upon  information  of  sundry  abuses  and  misde- 
meanors, committed  by  several  persons,  on  the  Lord's 
day,  not  only  by  children  playing  in  the  streets  and 
other  places,  but  by  youths,  maids,  and  other  persons, 
both  strangers  and  others,  uncivilly  walking  the  streets 
and  fields,  travelling  from  town  to  town,  going  on  ship- 

'  The  Charters  atid  General  Lazos  of  the  Colony  and  Province 
of  Massachusetts  Bay,  pp.  102,  103,  177. 

-  Palfrey's  History  of  New  England,  vol.  ii.,  p.  395. 


32  The   Colo7iics. 


board,  frequenting  common  houses,  and  other  places, 
to  drink,  sport,  and  otherwise  to  misspend  that  precious 
time  ;  which  things  tend  much  to  the  dishonor  of  God, 
the  reproach  of  rehgion,  and  the  profanation  of  his  holy 
Sabbath,  the  sanctification  whereof  is  sometimes  put  for 
all  duties  immediately  respecting  the  service  of  God, 
contained  in  the  first  table  ;  It  is  therefore  ordered,  by 
this  Court  and  authority,  that  no  children,  youths, 
maids,  or  other  persons,  shall  transgress  in  the  like 
kind,  on  the  penalty  of  being  reputed  great  provokers 
of  the  high  displeasure  of  Almighty  God,  and  further 
incurring  the  penalties  hereafter  expressed  ;  namely, 
that  the  parents  and  governors  of  all  children  above 
seven  years  old,  (not  that  we  approve  of  younger  chil- 
dren in  evil,)  for  the  first  offence  in  that  kind,  upon 
due  proof  before  any  magistrate,  own  commissioner,  or 
selectmen  of  the  town,  where  such  offence  shall  be 
committed,  shall  be  admonished  ;  for  a  second  offence, 
upon  due  proof  as  aforesaid,  shall  pay  a  fine  of  five 
shillings  ;  for  a  third  offence,  upon  due  proof  as  afore- 
said, ten  shillings  ;  and  if  they  shall  again  offend  in 
this  kind,  they  shall  be  presented  to  the  County  Court, 
who  shall  augment  punishment,  according  to  the  merit 
of  the  fact." 

Upon  all  youths  and  maids,  above  fourteen  years  of 
age,  and  all  elder  persons,  who  shall  be  convicted 
"either  for  playing,  uncivilly  walking,  drinking, 
travelling  from  town  to  town,  going  on  ship-board, 
sporting,  or  any  way  misspending  that  precious  time," 
similar  penalties  were  to  be  inflicted,  and  it  was  pro- 
vided that,  "  if  any  be  unable  or  unwilling  to  pay  the 
aforesaid  fines,  they  shall  be  whipped  by  the  constable, 
not  exceeding  five  stripes  for  ten  shillings  fine."  ' 
'  Records  IMassachiisclts  Bay,  vol.  iii.,  pp.  316,  317. 


Massachusetts  Bay.  2^}^ 

In  1658  a  law  was  enacted  requiring  that  Quakers 
should  be  banished  from  the  colony,  and  that  they 
should  be  put  to  death  if  they  returned  after  banish- 
ment.' The  latter  part  of  the  enactment,  happily,  re- 
mained in  force  only  two  years,  which,  unhappily,  was 
long  enough  to  compass  the  death  of  four  persons.  It 
was  thought  that  none  would  return  under  such  a 
penalty  and  that  there  never  would  be  occasion  for  its 
infliction,  but  William  Robinson,  Marmaduke  Steven- 
son, William  Leddra,  and  Mary  Dyer,  having  been 
banished,  returned,  under  a  supposed  revelation  of  the 
Spirit  requiring  them  to  testify  to  the  truth  by  the 
sacrifice  of  their  lives.  All  were  hanged  on  Boston 
Common.  Mary  Dyer  was  offered  suspension  of  the 
sentence  and  release  while  under  the  gallows  and  ac- 
cepted the  ofier,  but  afterwards,  repenting  of  her  un- 
faithfulness, returned  to  seek  death.' 

In  1667  it  was  enacted  by  the  General  Court,  "  that 
all  laws  for  sanctification  of  the  Sabbath,  and  prevent- 
ing the  profaning  thereof,  be  twice  in  the  year,  viz. ,  in 
March  and  in  September,  publicly  read  by  the  minister 
or  ministers  on  the  Lord's  day,  in  the  several  respective 
assemblies  within  this  jurisdiction  ;  and  all  people,  by 
him,  cautioned  to  take  heed  to  the  observance  thereof 
And  the  selectmen  are  hereby  ordered  to  see  to  it  that 
there  be  one  man  appointed  to  inspect  the  ten  families 
of  his  neighbors,  which  tithing  man,  or  men,  shall,  and 
hereby  have  power  in  the  absence  of  the  constable  to 
apprehend  all  Sabbath-breakers  and  disorderly  tipplers, 
or  such  as  keep  licensed  houses,  or  others  that  shall 
sufier  any  disorders  in  their  houses  on  the  Sabbath  day, 
or  evening  after,  or  at  any  other  time.     .     .     .     And 

'  Ibid.,  iv.,  pp.  349,  367. 

-  Palfrey's  History  of  New  England,  vol.  ii.,  pp.  478-480. 


34  The  Colonies. 


for  the  better  putting  a  restraint  and  securing  offenders 
that  shall  any  way  transgress  against  the  laws,  title. 
Sabbath,  either  in  the  meeting  house,  by  abusive  car- 
riage or  misbehavior,  by  making  any  noise  or  other- 
wise, or  during  the  daytime,  being  laid  hold  on  by  any 
of  the  inhabitants,  shall  by  the  said  person  appointed 
to  inspect  this  law  be  forthwith  carried  forth  and  put 
into  a  cage  in  Boston,  which  is  appointed,  forthwith,  by 
the  selectmen  to  be  set  up  in  the  market  place,  and  in 
such  other  towns  as  the  County  Court  shall  appoint ; 
there  to  remain  till  authority  shall  examine  the  person 
offending,  and  give  order  for  his  punishment,  as  the 
matter  may  require,  according  to  the  laws  relating  to 
the  Sabbath."  ' 

On  November  3, 1675,  the  following  law  was  enacted, 
viz.  : 

' '  Whereas,  There  is  so  much  profaneness  amongst 
us,  in  persons  turning  their  backs  upon  the  public 
worship  before  it  be  finished  and  the  blessing  pro- 
nounced ;  It  is  ordered  by  this  Court  that  the  officers 
of  the  church  or  selectmen  shall  take  care  to  prevent 
such  disorders  by  appointing  persons  to  shut  the  meet- 
ing house  doors,  or  some  other  meet  way  to  attain  that 
end.     .     .     . 

"  And,  touching  the  law  of  importation  of  Quakers, 
that  it  may  be  more  strictly  executed  and  none  trans- 
gressing to  escape  punishment ;  It  is  hereby  ordered 
that  the  penalty  of  that  law  averred  be  in  no  case  less 
than  twenty  pounds. ' '  ^ 

On  October  15,  1679,  the  following  enactment  was 
made,  viz.  : 

'  Records  of  the  Colony  of  the  Massachusetts  Bay  in  New 
England,  vol.  v.,  p.  133. 
^  Ibid.,  p.  60. 


Massachusetts  Bay.  35 

"  For  the  prevention  of  the  profanation  of  the  Sab- 
bath and  disorders,  on  Saturday  night,  by  horses  and 
carts,  passing  late  out  of  the  town  of  Boston,  It  is 
ordered  and  enacted  that  there  be  a  ward,  from  sun- 
set on  Saturday  night  until  nine  of  the  clock  or  after, 
consisting  of  one  of  the  selectmen  or  constables  of  Bos- 
ton, with  two  or  more  meet  persons,  who  shall  walk 
between  the  fortification  and  the  town's  end,  and  upon 
no  pretence  whatsoever  suffer  any  cart  to  pass  out  of 
the  town  after  sunset ;  nor  any  footman  nor  horseman, 
without  such  good  account  of  the  necessity  of  his  busi- 
ness as  may  be  to  their  satisfaction  ;  and  all  persons 
attempting  to  ride  or  drive  out  of  town  after  sunset, 
without  such  reasonable  satisfaction  given,  shall  be 
apprehended  and  brought  before  authority,  to  be  pro- 
ceeded against  as  Sabbath-breakers,  and  all  other  towns 
are  empowered  to  do  the  like  as  need  shall  be." 

"It  is  ordered  by  this  Court  and  the  authority 
thereof,  that  the  order  with  respect  to  ministers  read- 
ing the  laws  respecting  the  Sabbath  once  in  the  year 
publicly  on  the  Lord's  day,  be  henceforth  repealed  ; 
and  it  is  further  ordered  that  the  constable  or  town 
clerk  of  the  town  perform  the  same  upon  some  public 
meeeting  of  the  inhabitants."  ' 

Sections  18  and  20  of  the  statute  of  1679  are  as  fol- 
lows, viz.  : 

"  It  being  the  great  duty  of  this  Court  to  provide 
that  all  places  and  people  within  our  gates  be  supplied 
of  an  able  and  faithful  minister  of  God's  holy  word  ; 
Be  it  therefore  enacted  by  this  Court,  and  the  authority 
thereof,  that  the  county  courts  within  their  respective 
precincts  do  diligently  and  carefully  attend  on  the 
execution  of  such  orders  of  this  Court  as  concerns  the 
'  Ibid.,  pp.  239,  240,  243. 


36  The  Colonics. 


maintenance  of  the  ministry,  and  the  purging  of  their 
towns  and  peculiars  from  such  ministry  and  public 
preachers  as  shall  be  found  vicious  in  their  lives  or 
perniciously  heterodox  in  their  doctrine  ;  that  they 
use  their  best  endeavor  for  the  procuring  and  settling 
of  such  faithful  laborers  in  God's  vineyard  ;  and  that 
the  charges  of  their  procuring  and  settling  be  levied  on 
the  inhabitants  as  the  law  for  the  maintenance  of  min- 
isters directs  ;  and  that  for  the  future,  there  may  be  no 
neglect  hereof,  the  presidents  of  each  county  court 
shall  duly  from  time  to  time  give  it  in  charge  to  the 
grand  juries  of  their  respective  courts  to  present  all 
abuses  and  neglects  of  this  kind  ;  and  that  with  all 
care  and  diligence  the  same  be  redressed,  that  so  the 
name  of  the  Lord  our  God  being  known  in  our  dwell- 
ings and  exalted  in  our  gates.  He  may  still  delight 
in  us." 

"It  is  ordered  by  the  Court  and  the  authority 
thereof,  that  no  persons  whatever,  without  the  consent 
of  the  freemen  of  the  town  where  they  live,  first  orderly 
had  and  obtained,  at  a  public  meeting  assembled  for 
that  end,  and  license  of  the  County  Court,  or  defect  of 
such  consent  and  license,  by  the  special  order  of  the 
General  Court,  shall  erect  or  make  use  of  any  house  as 
above  said  (for  a  meeting  house)  ;  And  in  case  any 
person  or  persons  shall  be  convicted  of  transgressing 
this  law,  every  such  house  or  houses  wherein  such 
persons  shall  so  meet  more  than  three  times,  with  land 
whereon  such  house  or  houses  stand,  and  all  private 
ways  leading  thereunto,  shall  be  forfeited  to  the  use  of 
the  county,  and  disposed  of  by  the  county  treasurer  by 
sale,  or  demolishing  as  the  court  that  gave  judgment 
in  the  case  shall  order. ' '  ' 

'  Charters  and  General  Laws  of  the  Colony  and  Province  of 
Blassachusetts  Bay,  pp.  104,  105. 


Massachusetts  Bay.  37 

It  was  enacted  that  if  a  town  should  neglect  to  pro- 
vide for  the  support  of  the  ministrj',  "  upon  complaint 
made  to  the  Quarter  Sessions  of  tlie  peace  the  said 
court  of  Quarter  Sessions  shall  and  hereby  are  empow- 
ered to  order  a  competent  allowance  unto  such  minister 
according  to  the  statute  and  ability  of  the  town,  the 
same  to  be  imposed  upon  the  inhabitants  by  the  war- 
rant from  the  Court."  ' 

A  fine,  not  exceeding  forty  shillings,  was  imposed 
on  each  person  in  the  town  which  neglected  to  provide 
for  the  maintenance  of  the  ministry.  Upon  a  second 
conviction,  a  fine  of  four  pounds  was  imposed  on  each 
person,  and  a  like  sum  for  every  other  conviction." 

It  was  enacted  in  1679,  "that  all  masters  of  families 
do  once  a  week  (at  the  least)  catechise  their  children 
and  servants  in  the  grounds  and  principles  of  religion  ; 
and  if  any  be  unable  to  do  so  much,  that  then  at  least 
they  procure  such  children  and  apprentices  to  learn 
some  short  orthodox  catechism  without  book,  that  they 
may  be  able  to  answer  unto  the  questions  that  shall  be 
propounded  to  them  out  of  such  catechism  by  their 
parents  or  masters  or  any  of  the  selectmen,  when  they 
shall  call  them  to  trial  of  what  they  have  learned  in 
that  kind."  =" 

"It  is  required  of  the  selectmen  that  all  children  and 
youth  under  family  government  ...  be  taught 
some  orthodox  catechism."  * 

By  Act  of  1 700,  Jesuits  and  Romish  priests  were  re- 
quired to  depart  the  colou)^,  under  penalty  of  imprison- 
ment for  life  if  they  returned. 

In    1742,    upon   complaint   of  the   members  of  the 
Church  of  England,  a  law  was  enacted  without  limita- 
tion, which   had  been   twice   before  (1727   and   1735) 
^  Ibid.,  p.  244.  "^ Ibid.,  p.  256. 

^  Ibid.,  p.  74.  ^  Ibid.,  p.  197. 


38  The  Colonies. 


enacted,  with  a  limitation  of  five  years,  allowing  the 
town  treasurer  to  pay  to  ministers  of  the  Protestant 
Episcopal  Church  the  taxes  received  from  the  members 
of  that  church.  In  order  to  obtain  such  payment  it 
was  required  that  the  member  should  present  a  certifi- 
cate from  the  minister  and  church  wardens  that  he 
usually  and  frequently  attended  that  church.  * 

Similar  laws  were  enacted,  with  limits  of  various 
periods,  at  different  times  in  behalf  of  the  Baptists  and 
Quakers.  In  1770  a  similar  law  was  enacted  in  favor 
of  all  dissenters,  but  the  treasurer  was  not  allowed  to 
pay  over  any  taxes  for  the  support  of  a  dissenting  min- 
ister ' '  unless  such  person  shall  have  been  educated  at 
some  university,  college  or  public  academy  for  the  in- 
struction of  youth  in  the  learned  languages  and  in  the 
arts  and  sciences ;  or  shall  have  received  a  degree 
from  some  university,  college  or  public  academy  ;  or 
shall  have  obtained  testimonials  from  the  major  part 
of  the  settled  ministers  of  the  gospel  in  the  county  that 
they  approved  him  to  be  of  sufficient  learning  to  qualify 
him  for  the  work  of  such  ministry."  ^ 

It  appears  that  such  vexatious  regulations  were  pre- 
scribed for  the  administration  of  the  law,  that  it  was 
difficult  for  the  dissenter  to  get  out  of  the  public  treas- 
ury the  portion  due  him  for  the  support  of  his  min- 
ister. The  Baptists  objected,  on  principle,  to  the 
requirement  of  a  certificate  of  membership  in  their 
own  church  in  order  to  get  from  the  town  treasury 
their  portion  of  the  taxes  ;  holding  that  to  give  certifi- 
cates implies  an  acknowledgment  that  civil  rulers  have 
a  right  to  set  up  one  religious  sect  above  another ; 
holding,  also,  that  civil  rulers  are  not  representatives 
in  religious  matters,  and  therefore  have  no  right  to  im- 
'  Ibid.,  p.  537.  "-Ibid.,  p.  622. 


Massachusetts  Bay.  39 

pose  religious  taxes.  They  presented  their  grievances 
to  the  Continental  Congress  in  1774,  but  failed  to  ob- 
tain any  action  for  their  relief ' 

In  1760,  all  former  laws  relating  to  Sunday  were  re- 
pealed, and  a  new  code  adopted,  which  continued  in 
force  throughout  and  after  the  colonial  period.  The 
preamble  to  the  new  code  was  as  follows,  viz.  : 

"And,  whereas.  It  is  the  duty  of  all  persons  upon 
the  Lord's  day  carefully  to  apply  themselves,  publicly 
and  privately,  to  religion  and  piety  ;  the  profanation 
of  the  Lord's  day  is  highlj'  offensive  to  Almighty  God  ; 
of  evil  example  and  tends  to  the  grief  and  disturbance 
of  all  pious  and  religiously  disposed  persons ;  There- 
fore.    .     .     ." 

The  following  are  some  of  the  provisions  of  the  new 
law,  viz.  : 

Work  or  play  on  land  or  water  ;  travelling  by  any 
one,  except  in  extreme  necessity,  and  then  only  far 
enough  for  immediate  relief;  are  forbidden,  under  a 
penalty  of  not  less  than  ten,  nor  more  than  twenty 
shillings. 

Licensed  public-house  keepers  are  forbidden  to  enter- 
tain any  except  travellers,  strangers,  and  lodgers,  in  or 
about  their  premises,  for  the  purpose  of  drinking,  play- 
ing, lounging,  or  doing  any  secular  business  whatever, 
on  penalty  of  ten  shillings  ;  and  the  person  drinking, 
playing,  lounging,  or  doing  secular  business  was  to  be 
fined  five  shillings. 

Loitering,  walking,  or  gathering  in  companies,  in 
streets,  fields,  orchards,  lanes,  wharves,  etc.,  was  for- 
bidden, under  penalty  of  five  shillings. 

Absence  from  public  worship,  for  one  month,  was  to 
be  punished  with  a  fine  of  ten  shillings. 

^  Church  and  State  in  New  England,  Lauer,  pp.  80-83. 


40  Maine. 

The  observance  of  Sunday  was  to  commence  at  sun- 
set on  Saturday. 

Twelve  wardens  were  to  be  appointed  in  each  town 
to  execute  these  laws.  They  were  to  look  after  all  in- 
fringements, enter  all  suspected  places,  examine  or 
inquire  after  all  suspected  persons.  In  Boston,  they 
were  to  patrol  the  streets  every  Sunday  (very  stormy  or 
cold  days  excepted),  and  diligently  watch  and  search 
for  offenders.  These  laws  were  to  be  read  at  the  March 
meeting  of  the  towns  each  year.' 

4.  Maine. — The  Plymouth  Company,  on  the  loth 
of  August,  1622,  gave  a  patent  to  Sir  Ferdinando 
Gorges  and  Captain  John  Mason  for  certain  territory 
in  New  England.  Charles  I.,  by  a  charter  issued  to 
Sir  Ferdinando  Gorges,  April  3,  1639,  confirmed  the 
previous  patent,  granting  him  the  territory  from  Pas- 
cataway  Harbor  to  the  Kennebec  River,  and  one  hun- 
dred and  twenty  miles  inland,  which  was  to  be  called 
"  The  Province  or  County  of  Mayne."  To  him  were 
granted  in  this  charter  ' '  All  Patronages  and  Advow- 
sons,  Free  Dispositions  and  Donacons,  of  all  and  every 
such  churches  and  chapels  as  shall  be  made  and  erected 
within  the  said  Province  and  Premises,  or  any  of  them, 
with  full  power,  lycense,  and  authority  to  builde,  erect, 
or  cause  to  be  builte  and  erected,  so  many  churches 
and  chappels  there  as  to  the  said  Sir  Ferdinando 
Gorges,  his  heirs  and  assigns,  shall  seeme  meete  and 
convenient ;  and  to  dedicate  and  consecrate  the  same, 
or  cause  the  same  to  bee  dedicated  and  consecrated, 
according  to  the  Established  Lawes  of  this  our  Realme 
of  England  ;  together,  alsoe,  with  all  and  singular,  and 
as  large  and  ample  Rights,  jurisdictions      ...      as 

'^  Acts  and  Laws  of  the  Province  of  Massachusetts  Bay,  pp. 
392,  397- 


Neiv  Hampsliire.  41 

the  Bishopp  of  Durham,  within  the  Bishopricke  or 
Countie  Palatine  of  Duresme,  in  our  kingdome  of  Eng- 
land, now  hath,  usetli,  or  enjoyeth,  or,  of  right,  he 
ought  to  have,  use,  or  enjoye.     .     .     .  " 

While  the  Church  of  England  was  by  this  charter 
made  the  established  church  of  the  colony,  it  appears 
that  Massachusetts,  by  its  enterprise  and  its  aggres- 
sions, effected  the  establishment  of  the  Congregational 
Church  in  many  of  the  towns  of  Maine.  Its  ecclesias- 
tical policy  was  made  regularly  predominant  by  the 
purchase  of  the  Gorges  Charter  in  1677  ;  and  finally 
also  by  the  new  charter,  granted  by  William  and  Mary 
in  1691,  which  merged  all  the  provinces  of  Plymouth, 
Massachusetts,  Maine,  Sagadohoc,  and  Acadia  into 
one,  under  the  title  of  The  Province  of  Massachusetts 
Bay. 

5.  New  Hampshire.— The  first  settlements  in  New 
Hampshire,  Dover,  Portsmouth,  and  Exeter,  were  in- 
dependent governments  ;  but  being  unable  to  defend 
themselves  against  the  Indians,  they  united  with  the 
colony  of  Massachusetts,  in  1641.  This  union  contin- 
ued till  1679,  when  New  Hampshire  was  constituted 
and  declared  to  be  a  separate  province.  Charles  II., 
in  the  Commission  constituting  the  President  and 
Council  of  the  Province  of  New  Hampshire,  September 
18,  1679,  said,  "And,  above  all  things  we  do  by  these 
presents,  will,  require,  and  command  our  said  Council, 
to  take  all  possible  care  for  the  discountenancing  of 
vice,  and  encouraging  of  virtue  and  good  living  ;  and 
that  by  such  examples,  the  infidel  may  be  incited  and 
desire  to  partake  of  the  Christian  religion  ;  and  for  the 
greater  ca.se  and  satisfaction  of  the  said  loving  subjects 
in  matters  of  religion,  we  do  hereby  require  and  com- 
mand that  liberty  of  conscience  shall  be  allowed  unto 


42  The  Colonies. 


all  Protestants ;  that  such  especially  as  shall  be  con- 
formed to  the  rights  of  the  Church  of  England  shall  be 
particularly  countenanced  and  encouraged."  ' 

Among  the  laws  enacted  in  1680  are  the  following, 
viz.  : 

"  If  any  person  within  the  province  professing  the 
true  religion,  shall  wittingly  and  wilfully  presume  to 
blaspheme  the  holy  name  of  God  the  Father,  Son  and 
Holy  Ghost,  with  direct,  express,  presumptuous  or 
high-handed  blasphemy,  either  by  wilful  or  obstinate 
denying  the  true  God,  or  his  creation,  or  government 
of  the  world  ;  or  shall  curse  God  the  Father,  Son  or 
Holy  Ghost,  such  person  shall  be  put  to  death.  L,eviti- 
cus,  xxiv.,  15,  16."  ^ 

"  Upon  information  of  sundry  abuses  and  misde- 
meanors, committed  by  divers  persons  on  the  I^ord's 
day,  it  is  therefore  ordered  and  enacted  by  this  General 
Assembly,  that  what  person  soever  within  this  govern- 
ment shall  profane  the  Lord's  day  by  doing  unneces- 
sary servile  work  or  travel ;  or  by  sports  or  recreations  ; 
or  by  being  at  ordinaries  in  time  of  public  worship ; 
such  person  or  persons  shall  forfeit  ten  shillings,  or  be 
whipped,  for  every  such  offence  ;  and  if  it  appear  that 
the  sin  was  proudly  or  presumptuously  or  with  a  high 
hand  committed  against  the  known  command  and 
authority  of  the  blessed  God,  such  person,  therein  de- 
spising and  reproaching  the  Lord,  shall  be  severely 
punished  at  the  judgment  of  the  Court.  .  .  .  For- 
asmuch as  the  open  contempt  of  God's  word  and  the 
messengers  thereof  is  the  desolating  sin  of  several 
States  and  churches  ;  it  is  therefore  enacted  that  if  any 
Christian,  so  called,  in  this  province,  shall  speak  con- 
temptuously of  the  holy  Scriptures,  or  of  the  holy  pen- 

'  Provincial  Papers,  vol.  i.,  p.  378.  ^  Ibid.,  p.  363. 


Neiv  HampsJiire.  43 

men  thereof,  such  person  or  persons  shall  be  punished 
by  fine  or  corporal  punishment,  as  the  Court  shall  see 
reason,  so  as  it  extend  not  to  the  life  or  limb  ;  or  shall 
behave  himself  contemptuously  toward  the  Word  of 
God  preached,  or  any  minister  thereof,  called  and  faith- 
fully discharging  the  same  in  any  congregation,  either 
by  manifest  interrupting  him  in  his  ministerial  dispen- 
sations, or  falsely  or  presumptuously  charging  him  with 
teaching  error,  to  the  disparagement  and  hindrance  of 
the  work  of  Christ  in  his  hands  ;  or  manifestly  or  con- 
temptuously reproach  the  ways,  churches,  or  ordinances 
of  Christ ;  being  duly  convicted  thereof,  he  or  they,  for 
the  first  transgressions,  be  amerced  twenty  shillings  to 
the  province,  or  to  sit  in  the  stocks  not  exceeding  four 
hours  ;  but  if  he  or  they  go  on  to  transgress  in  the  same 
kind,  then  to  be  amerced  forty  shillings,  or  to  be  whipped 
for  every  such  trangression."  ' 

By  the  law  of  1682,  it  was  "  ordered  that  the  constable 
with  some  other  meet  person,  whom  he  shall  choose, 
shall  in  the  time  of  public  worship  go  forth  to  any  sus- 
pected place  "  and  apprehend  those  who  idly  straggle 
abroad.^ 

"  Be  it  enacted, — That  it  shall  and  may  be  lawful  for 
the  freeholders  of  every  respective  town,  convened  in 
public  town  meeting,  as  often  as  they  shall  see  occa- 
sion, to  make  choice  of,  and  by  themselves,  or  any  other 
person  or  persons  by  them  appointed,  to  agree  with  a 
minister  or  ministers  for  the  supply  of  the  town,  and 
what  annual  salarj^  shall  be  allowed  him  ;  and  the 
minister  so  made  choice  of  shall  be  accounted  the 
settled  minister  of  that  town  ;  and  the  selectmen,  then 
for  the  time  being,  shall  make  rates  and  assessments 
upon  the  inhabitants  of  the  town  for  the  payment  of 
'  Ibid.,  pp.  387,  3S8.  ^  Ibid.,  p.  446. 


44  The  Colonies. 


the  minister's  salary,  as  aforesaid,  in  such  manner  and 
form  as  they  do  for  defraying  of  other  town  charges, 
which  rates,  by  warrants  from  a  justice  of  the  peace, 
with  the  selectmen,  to  the  constable  or  constables  of 
the  town,  shall  be  by  him  or  them  collected  and  paid, 
according  to  the  direction  of  the  selectmen,  for  the  end 
aforesaid.  Provided  always  that  this  Act  do  not  inter- 
fere with  their  Majesties'  grace  and  favor  in  allowing 
their  subjects  liberty  of  conscience,  nor  shall  any  per- 
son under  pretence  of  being  of  a  different  persuasion  be 
excused  from  paying  toward  the  support  of  the  settled 
minister  or  ministers  of  the  town  ;  but  only  such  as  are 
conscientiously  so,  and  constantly  attend  the  public  wor- 
ship of  God  on  the  Lord's  day  according  to  their  own 
persuasion,  and  they  only  shall  be  excused  from  paying 
towards  the  support  of  the  minister  of  the  town. ' '  ' 

It  was  voted  by  the  House  of  Representatives,  Janu- 
ary 6,  1725,  "  That  the  petititioners  (of  Sandy  Beach) 
are  obliged  to  maintain  an  able  orthodox  minister  of 
the  gospel,  at  their  own  charges."  * 

6.  Connecticut. — The  first  permanent  settlements 
in  Connecticut  were  made  at  Windsor,  Hartford,  Weath- 
ersfield,  and  Springfield,  by  emigrants  from  Massachu- 
setts. A  provisional  government  was  instituted,  under 
a  commission  from  the  General  Court  of  Massachusetts, 
March  3,  1636,  issued  to  eight  of  the  persons  who  "  had 
resolved  to  transplant  themselves  and  their  estates  unto 
the  river  Connecticut ;  .  .  ,  that  commission  taking 
rise  from  the  desire  of  the  people  that  removed,  who 
judged  it  inconvenient  to  go  away  without  any  frame 
of  government ;  not  from  any  claim  of  the  Massachu- 
setts of  jurisdiction  over  them  by  virtue  of  Patent." 
Springfield  withdrew  from  the  association  in  1637,  and 

'  Ibid.,  vol.  iii.,  pp.   189,  190.  ''■  Ibid.,  vol.  iv.,  p.  414. 


Connecticut.  45 


the  remaining  towns  formed  a  written  compact  or  con- 
stitution in  1639,  entitled,  The  Fundamental  Orders  of 
Connectiait,  which  was  the  first  constitution  "  written 
out  as  a  complete  form  of  civil  order  in  the  new  world. ' ' 
In  this  constitution  they  say  :  ' '  We  ...  do  for  our- 
selves, and  our  successors,  and  such  as  shall  be  ad- 
joined to  us  at  any  time  hereafter,  enter  into  com- 
bination and  confederation  together,  to  maintain  and 
preserve  the  liberty  and  purity  of  the  gospel  of  our 
L,ord  Jesus,  which  we  now  profess  ;  as  also  the  dis- 
cipline of  the  churches,  which,  according  to  the  truth 
of  the  said  gospel,  is  now  practised  amongst  us. ' '  It 
is  provided  in  Article  I.,  that  the  magistrates  "shall 
have  power  to  administer  justice  according  to  the  laws 
here  established  ;  and  for  want  thereof,  according  to 
the  rule  of  the  Word  of  God."  It  was  provided  in 
Article  4,  "  that  the  Governor  be  always  a  member  of 
some  congregation."  One  clause  in  the  oath  of  office 
to  be  taken  by  the  Governor  and  the  magistrates  was  : 
"  I,  N.  M.  .  .  .  do  swear,  by  the  great  and 
dreadful  name  of  the  ever-living  God,  ...  to 
further  the  execution  of  justice,  for  the  time  afore- 
said, according  to  the  righteous  rule  of  God's  Word  ; 
so  help  me  God,  in  the  name  of  the  I^ord  Jesus 
Christ." 

In  accordance  with  the  recommendation  of  the  Com- 
missioners of  the  United  Colonies  of  New  England,  the 
General  Court  of  Connecticut,  October  4,  1656,  enacted 
that  "  No  town  entertain  Quakers,  Ranters,  Adamites, 
or  such  like  notorious  heretics,  or  suffer  to  continue 
with  them  above  the  space  of  fourteen  days,  upon  pen- 
alty of  five  pounds  per  week  ;  .  .  .  but  the  towns- 
men shall  give  notice  to  the  two  next  magistrates  or 
assistants,  who  shall  have  power  to  send  them  to  prison 


46  The  Colonies. 


for  securing  them  until  they  can  be  conveniently  sent 
out  of  the  jurisdiction. ' '  ' 

By  an  Act  of  1650  relating  to  burglary  and  robbery, 
the  commission  of  those  crimes  on  the  Sabbath  day  was 
made  an  aggravation  which  called  for  punishment  of 
increased  severity.  "  He  shall  for  the  first  offence 
have  one  of  his  ears  cut  off;  for  the  second  offence,  in 
the  same  kind,  he  shall  lose  his  other  ear  in  the  same 
manner  ;  and  if  he  fall  into  the  same  offence  the  third 
time  he  shall  be  put  to  death." 

A  law  almost  identical  with  that  of  Massachusetts 
Bay  and  New  Hampshire  was  enacted  against  con- 
temptuous carriage  towards  God's  Word  and  the  ordi- 
nances and  ministers  of  the  gospel :  ' '  Forasmuch  as 
that  the  open  contempt  of  God's  Word  and  messengers 
thereof  is  the  desolating  sin  of  civil  States  and  churches  ; 
and  that  the  preaching  of  the  Word  by  those  whom 
God  hath  sent  is  the  chief  ordinary  means  ordered  by 
God  for  the  converting,  edifying,  and  saving  of  the 
souls  of  the  elect,  through  the  presence  and  the  power 
of  the  Holy  Ghost,  thereunto  promised  ;  and  that  the 
ministry  of  the  Word  is  set  up  by  God  in  his  churches 
for  those  holy  ends ;  and  according  to  the  respect  or 
contempt  of  the  same,  and  of  those  whom  God  hath  set 
apart  for  his  own  work  or  employment,  the  weal  or 
woe  of  all  Christian  States  is  much  furthered  or  pro- 
moted ; 

"  It  is  therefore  ordered  and  decreed  that  if  any  Chris- 
tian (so  called)  within  this  jurisdiction  shall  behave 
himself  contemptuously  towards  the  word  preached,  or 
the  messengers  thereof,  called  to  dispense  the  same  in 
any  congregation,  when  he  faithfully  executed  the 
service  and  office  therein,  according  to  the  will  and 

'  The  Public  Records  of  the  Colony  of  Connecticut,  Prior  to 
the  Union  with  New  Haven,  May,  i66j,  pp.  283,  284. 


Connecticut.  47 

word  of  God,  either  by  interrupting  him  in  preaching, 
or  by  charging  him  falsely  with  an  error  which  he  hath 
not  taught,  in  the  open  face  of  the  church  ;  or,  like  a 
son  of  Korah,  cast  upon  his  true  doctrine  or  himself 
any  reproach,  to  the  dishonor  of  the  Lord  Jesus,  who 
hath  sent  him  ;  and  to  the  disparagement  of  that  his 
holy  ordinance,  and  making  God's  way  contemptible 
or  ridiculous  ;  that  every  such  person  or  persons  (what- 
soever censure  the  church  may  pass),  shall  for  the  first 
scandal  be  convented  and  reproved  openly  by  the 
magistrate,  at  some  lecture,  and  bound  to  their  good 
behavior.  And  if  a  second  time  they  break  forth  into 
the  like  contemptuous  carriages,  they  shall  either  pay 
five  pounds  to  the  public  treasurer,  or  stand  two  hours 
openly  upon  a  block  or  stool  four  feet  high  upon  a 
lecture  day  with  a  paper  fixed  upon  his  breast  with 
capital  letters,  An  open  and  obstinate  contemner  of  God' s 
hoty  ordinance,  that  others  may  fear  and  be  ashamed  of 
breaking  out  into  like  wickedness. ' '  ' 

' '  It  is  ordered  and  decreed  by  this  Court  and  the 
authority  thereof,  that  wheresoever  the  ministry  of  the 
Word  is  established  according  to  the  order  of  the 
gospel,  throughout  this  jurisdiction,  every  person  shall 
duly  resort  and  attend  thereunto,  respective!)-,  upon 
the  lyord's  day,  and  upon  such  fast  days  and  days  of 
thanksgiving  as  are  to  be  generally  kept  by  the  ap. 
pointment  of  authority.  And  if  any  person  within  this 
jurisdiction  shall,  without  just  and  necessary  cause, 
withdraw  himself  fi'om  hearing  the  public  ministry  of 
the  "Word,  after  due  means  of  conviction  used,  he  shall 
forfeit  for  his  absence  from  ever}'  such  public  meeting, 
five  shillings."  " 

'  Ibid.,  pp.  523,  524. 

2  Public  Records  of  the  Colony  of  Connecticut,  Prior  to  1665, 
pp.  514,  524. 


48  The  Colonics. 


The  following  was  enacted  by  the  General  Assembly, 
October  11,  1666 : 

' '  This  Court  doth  conclude  and  consider  of  some 
way  or  means  to  bring  those  ecclesiastical  matters  that 
are  in  difference  in  several  plantations  to  an  issue,  by 
stating  some  suitable  accommodation  and  expedient 
thereunto,  and  do  therefore  order  that  a  Synod  be 
called  to  consider  and  debate  those  matters  ;  and  that 
the  matters  and  questions  to  the  elders  and  ministers 
that  are  called  to  this  Synod,  shall  be  publicly  dis- 
puted to  an  issue.  And  this  Court  doth  confer  power 
on  this  Synod,  being  met  and  constituted,  to  order  and 
authorize  the  disputation  so  as  may  most  conduce,  in 
their  apprehension,  to  attain  a  regular  issue  of  their 
debates.  .  .  .  This  Court  doth  order  that  the 
questions  stated  by  this  Court  shall  be  those  that  shall 
be  considered  and  publicly  disputed  in  the  Synod  next 
May.     .     .     : 

"17.  Question  ist.  Whether  federal  holiness  or 
covenant  interest  be  not  the  proper  ground  of  baptism  ? 

' '  Whether  it  be  not  justifiable,  by  the  Word  of  God, 
that  the  civil  authority  indulge  Congregational  and 
Presbyterian  Churches  and  their  discipline  in  the 
churches  ? ' ' 

On  May  20,  1668,  the  following  was  enacted  : 

"  Whereas,  The  sanctification  of  the  Sabbath  is  a 
matter  of  great  concernment  to  the  weal  of  the  people, 
and  the  profanation  thereof  is  that  as  pulls  down  the 
judgments  of  God  upon  that  place  or  people  that  suffers 
the  same  ;  it  is  therefore  ordered  by  this  court  and  the 
authority  thereof,  that  if  any  person  shall  profane  the 
Sabbath,  by  unnecessary  travel  or  playing  thereon,  in 
the  time  of  public  worship,  or  before  or  after,  or  .shall 
keep  out  of  the  meeting-house  during  the  public  wor- 


Connecticut.  49 


ship  uunecessarily,  there  being  convenient  room  in  the 
house,  he  shall  pay  five  shillings  for  every  such  oflfence, 
or  sit  in  the  stocks  one  hour.  And  the  constables  in 
the  several  plantations  are  hereby  required  to  make 
search  after  all  offenders  against  this  law  and  make 
return  thereof  to  the  commissioners  or  assistants."  ' 
On  May  15,  1676,  the  following  was  enacted  : 
"  Whereas,  Notwithstanding  former  provisions  made 
for  the  due  sanctification  of  the  Sabbath,  it  is  observed 
that  by  sundry  abuses  the  Sabbath  is  profaned ;  the 
ordinances  rendered  unprofitable,  which  threatens  the 
rooting  out  of  the  power  of  godliness  and  the  procuring 
of  the  wrath  and  judgments  of  God  upon  us  and  our 
posterity  ;  for  preventing  whereof,  it  is  ordered  by  this 
Court  that  if  any  person  or  persons  henceforth,  either 
on  the  Saturdaj^  night  or  on  the  Lord's  day  night, 
though  it  be  after  the  sun  is  set,  shall  be  found  sport- 
ing in  the  field  of  any  town  in  this  jurisdiction,  or  be 
drinking  in  houses  of  public  entertainment,  or  else- 
where, unless  for  necessity  ;  every  person  so  found, 
complained  of  and  proved  transgressing,  shall  pay  ten 
shillings  for  every  such  transgression,  or  suffer  corporal 
punishment  for  default  of  due  payment.  Nor  shall  any 
sell  or  draw  any  sort  of  strong  drink  at  any  time,  or  to 
be  used  in  any  such  manner,  upon  the  like  penalty  for 
every  such  default. 

"  It  is  also  further  ordered  that  no  servile  work  shall 
be  done  on  the  Sabbath,  viz.  :  such  as  are  not  works 
of  piety,  charity,  or  necessity  ;  and  no  profane  discourse 
or  talk,  rude  or  unreverent  behavior,  shall  be  used  on 
that  holy  day,  upon  penalty  of  ten  shillings  fine  for 
every  transgression  hereof ;  and  in  case  the  offence  be 

'  Public  Records  of  the  Colony  of  Connecticut^  1665-1678, 
p.  88. 


50  The  Colonies, 


circumstanced  with  high-handed  presumption  as  well 
as  profaneness,  the  penalty  to  be  augmented  at  the 
discretion  of  the  judges."  ' 

The  lyords  Commissioners,  April  8,  1678,  ordered 
that  "  some  particular  queries  be  prepared  which  may 
lead  to  those  informations  concerning  them  [the  New 
England  colonies]  which  may  give  light  into  their  be- 
havior, so  as  to  guide  their  Hardships  in  advising  his 
Majesty  into  such  methods  for  the  settlement  and  regu- 
lation thereof  as  may  best  conduce  to  his  royal  service ' '  ; 
and  the  answer  given  to  the  26th  query  by  the  Colony 
of  Connecticut  was  : 

"  Our  people  in  this  colony  are,  some,  strict  Con- 
gregational men  ;  others,  more  large,  Congregational 
men,  and  some  moderate  Presbyterians  ;  and  take  the 
Congregational  men  of  both  sorts,  they  are  the  greatest 
part  of  the  people  in  this  colony.  There  are  four  or  five 
Seven  Day  men  in  our  colony,  and  about  as  many  more 
Quakers. 

"27.  Answer  (i)  Great  care  is  taken  for  the  instruc- 
tion of  the  people  in  the  Christian  religion,  by  ministers 
catechising  of  them,  and  preaching  to  them  twice  every 
Sabbath  days,  and  sometimes  lecture  days  ;  and  so  by 
masters  and  families  instructing  and  catechising  their 
children  and  servants,  being  so  required  to  do  by 
law. 

"  (2)  In  our  corporation  are  twenty-six  towns,  and 
there  are  one  and  twenty  churches  in  them, 

' '  (3)  For  the  maintenance  of  the  ministers,  it  is 
raised  upon  the  people  by  way  of  rate  ;  and  it  is  in 
some  places  one  hundred  pounds  per  annum,  some 
ninety  pounds,  some  eighty  pounds,  some  sixty  pounds, 
but  in  no  place  less  than  fifty  pounds  per  annum,  as  we 
'  Ibid.,  p.  280. 


Connecticut.  5 1 


know  of,  and  so  the  proportion  raised  is  according  as 
the  occasion  of  the  minister  calls  for  it,  and  the  people's 
ability  will  allow."  ' 

These  answers  were  adopted  July  15,  1680.  On 
May  12,  1688,  the  General  Court  adopted  the  follow- 
ing : 

' '  This  Court,  taking  into  their  most  serious  con- 
sideration, of  what  high  importance  it  is  for  the  glory 
of  God  and  the  welfare  of  his  Majesty's  good  subjects 
inhabiting  in  this  colony,  that  a  competent  and  certain 
maintenance  of  the  ministers  of  the  gospel  be  duly 
stated  and  settled  ;  have  judged  it  their  duty  to  order 
and  appoint,  and  accordingly  do  by  the  authority  of 
this  Court  enact,  order,  and  appoint,  that  the  towns  and 
plantations  in  this  colony  pay  unto  the  respective  min- 
isters in  the  said  towns  or  plantations  annually  the 
several  sums  and  payments  which  shall  be  agreed  upon, 
which  sums  or  payments  in  each  town  or  society  shall 
be  levied  and  assessed  on  the  persons  inhabiting  in 
such  towns  or  plantations,  according  to  their  respective 
estates.  .  .  .  And,  it  is  further  ordered  by  this 
Court  and  the  authority  thereof,  that  if  any  towns  in 
this  colony  shall  be,  in  and  for  any  year  or  years,  with- 
out a  minister,  preaching  the  gospel  unto  them,  such 
town  or  towns  shall,  in  the  said  year  or  years,  notwith- 
standing, pay  such  sums  or  payments  as  the  General 
Court  shall  appoint,  as  if  there  were  a  minister 
there."  " 

On  October  12,  1699,  it  was  enacted  : 

"  That  in  every  town,  plantation,  or  society  within 
this  colony  where  the  major  part  of  the  householders 
of  any  the  said  town,  plantation,  or  society,  who  in  or 

'  Ibid.,  May,  1676  ;  June,  1689,  pp.  299,  300. 
^  Ibid.,  1688-1704,  pp.  198,  199. 


52'  The  Colo7iies. 


by  law  are  an  allowed  society,  are  agreeing  in  calling 
and  settling  a  minister,  such  minister  so  called  and 
settled  shall  be  accounted  the  lawful  minister  of  said 
town,  plantation,  or  society  ;  and  that  all  agreements, 
respecting  the  maintenance  and  settlement  of  such 
minister,  made  by  the  major  part  of  the  householders 
of  said  town,  plantation,  or  society,  shall  be  binding 
and  obliging  to  the  whole  and  all  of  said  town,  planta- 
tion, or  society,  and  to  their  successors,  according  to 
all  the  true  intents  and  purposes  thereof. 

"  And  it  is  further  ordered  and  enacted,  by  the 
authority  aforesaid,  that  where  this  Court  hath  deter- 
mined the  bounds  and  limits  of  any  society  in  any  town 
or  plantation  in  this  colony  where  there  are  more  than 
one  society,  that  in  every  such  case,  all  persons  living 
within  the  bounds  and  limits,  and  their  estates  lying 
within  the  same,  shall  bear  their  proportion  of,  and  be 
rateable  according  to  law  for  the  support  and  mainten- 
ance of  the  minister  of  that  society,  any  law,  usage,  or 
custom  to  the  contrary  notwithstanding. ' '  ' 

Upon  the  observance  of  the  Sabbath  it  was  enacted 
in  October,  1709  : 

* '  That  if  any  single  persons,  being  boarders  or  so- 
journers, or  any  young  persons  whatsoever,  under  the 
government  of  parents  or  masters,  within  this  colony, 
shall  convene  or  meet  together  in  company  or  com- 
panies, in  the  street  or  elsewhere,  on  the  evening  after 
the  Sabbath,  or  any  public  day  of  fast  or  any  lecture 
day,  and  be  thereof  duly  convicted,  shall  pay  a  fine  of 
five  shillings,  or  be  set  in  the  stocks,  not  exceeding 
two  hours  for  each  such  offence. ' '  ^ 

October,  1715.  "  Whereas,  In  the  printed  law  en- 
titled Sabbath,  p.  104,  no  provision  is  made  to  prevent 
'  Ibid.,  p.  316.  ^  Ibid.,  1706-1716,  p.  130. 


Nezv  Haven.  _  53 

vessels  sailing  up  and  down  the  great  river  Connecti- 
cut on  the  Sabbath  day,  which  the  masters  of  vessels, 
taking  the  advantage  of,  do  frequently,  and  without 
restraint,  pass  up  and  down  said  river  on  said  day  ;  Be 
it  therefore  enacted,  that  if  any  vessel  shall  sail  or  pass 
by  any  town  or  parish  on  said  river  where  the  public 
worship  of  God  is  maintained,  or  shall  weigh  anchor 
within  two  miles  of  said  place,  unless  to  get  nearer 
thereto  on  the  Sabbath  day,  any  time  betwixt  the  morn- 
ing light  and  the  sun  setting,  the  master  of  such  vessel 
shall  be  liable  to  the  like  penalty  as  if  he  had  departed 
out  of  a  harbor. ' ' ' 

"  Whatsoever  person  shall  not  attend  the  public 
worship  of  God  on  the  Lord's  day  in  some  congrega- 
tion, allowed  by  law,  unless  hindered  by  sickness  or 
otherwise  necessarily  detained,  and  be  thereof  convicted, 
shall  incur  the  penalty  of  five  shillings  money  for  every 
such  offence,"  " 

7.  New  Haven. — The  colony  of  New  Haven  was 
founded  in  1638,  by  a  number  of  English  emigrants  led 
by  the  Rev.  John  Davenport,  who  had  been  minister 
of  St.  Stephen's  Chru'ch,  London,  but  was  deprived  of 
his  charge  and  banished  on  account  of  his  Puritanism  ; 
and  by  Mr.  Theophillus  Eaton,  a  wealthy  merchant  of 
London,  who  had  been  a  member  of  Mr.  Davenport's 
church,  and  sympathized  with  him  in  his  Puritan 
views. 

On  the  4th  day  of  the  fourth  month,  called  June, 
1639,  all  the  free  planters  assembled  together  in  a  gen- 
eral meeting  in  "a  mighty  barn,"  to  consult  about 
settling  a  civil  government  according  to  God,  and  about 
the  nomination  of  persons  who  might  be  found,  by  con- 
sent of  all,  fittest  in  all  respects  for  the  foundation  work 
'  Ibid.,  p.  525.  *  Ibid.,  1717-1725,  p.  248. 


54  The  Colonies. 


of  a  church,  which  was  intended  to  be  gathered  in 
Quinipiack.  It  was  agreed  by  vote  that  "  the  Scrip- 
tures do  hold  forth  a  perfect  rule  for  the  direction  and 
government  of  all  men  in  all  duties  which  they  are  to 
perform  to  God  and  men,  as  well  in  the  government 
of  families  and  commonwealths,  as  in  matters  of  the 
church.  That  church  members  only  shall  be  burgesses, 
and  that  they  only  shall  choose  magistrates  and  officers 
among  themselves  to  have  the  power  of  transacting  the 
public  civil  afifairs  of  this  plantation  ;  of  making  and 
repealing  laws  ;  dividing  inheritances  ;  deciding  differ- 
ences that  may  arise,  and  doing  all  things  or  business 
of  like  nature  ;  and  that  all  that  should  be  hereafter 
admitted  here  as  planters  subscribe  their  names  to  the 
above  order." 

"  That  twelve  men  be  chosen,  that  their  fitness  for 
the  foundation  work  may  be  tried  ;  however,  there  may 
be  more  named,  yet  it  may  be  in  their  power  who  are 
chosen,  to  reduce  them  to  twelve  ;  and  it  be  in  the 
power  of  those  twelve  to  choose  out  of  themselves  seven 
that  shall  be  most  approved  of  the  major  part  to  begin 
the  church." 

Mr.  Davenport  having  preached  a  sermon  at  the 
opening  of  the  meeting  from  the  text,  Prov.  ix.,  i  : 
"  Wisdom  hath  builded  her  house,  she  hath  hewn  out 
her  seven  pillars,"  the  seven  men  were  chosen  as  pil- 
lars of  the  church,  in  supposed  accordance  with  the 
action  of  Wisdom  as  set  forth  in  that  text. 

On  October  25,  1639,  the  Court  "  consisting  of  those 
seven  only  who  were  the  foundation  of  the  church 
.  ,  .  met,  and  after  solemn  pra^-er  unto  God,  did 
proceed  as  follows  ' '  : 

First.  All  former  power  or  trust  for  managing  any 
public  affairs  in  this  plantation,   into  whose  hands  so- 


New  Haven.  55 


ever  formerly  committed,  was  now  abrogated,  and  from 
henceforward  utterly  to  cease. 

Second.  They  admitted  nine  new  members,  upon 
their  acceptance  of  the  terms  propounded  in  a  charge 
delivered  to  them. 

' '  This  being  done  the  Court  proceeded  to  the  choice 
of  a  magistrate  and  four  deputies  to  assist  in  the  public 
affairs  of  the  plantation,  Mr.  Davenport  first  opening 
two  Scriptures,  viz.  :  Deut.  i.,  13  ;  Ex.  xviii.,  21, 
wherein  a  magistrate,  according  to  God's  mind  is 
described."  ' 

The  town  of  Milford  having  admitted  six  men  to  be 
free  burgesses  who  were  not  church-members,  and  the 
matter  having  been  brought  before  the  Court,  it  was 
agreed,  first,  that  these  six  are  not  to  be  chosen,  either 
deputies  or  into  any  public  trust  for  the  combination  ; 
second,  that  they  are  not  to  vote  for  magistrates  ;  third, 
none  are  to  be  admitted  by  Milford  hereafter  to  be  free 
burgesses  but  church-members  ;  but  the  six  are  to  be 
allowed  to  sit  in  town  business,  in  which  the  combina- 
tion is  not  interested.  Two  may  vote  for  deputies  to 
the  General  Courts  for  the  combination  or  jurisdiction, 
which  deputies  shall  always  be  church-members.  "^ 

The  following  enactment  was  made  April  3,  1644  : 

' '  In  the  beginning  of  the  first  foundation  of  this 
plantation  and  jurisdiction,  upon  a  full  debate  with  due 
and  serious  consideration,  it  was  agreed,  concluded,  and 
settled,  as  a  fundamental  law,  not  to  be  disputed  or 
questioned  hereafter,  that  the  judicial  laws  of  God,  as 
they  were  delivered  by  Moses  and  expounded  in  other 
parts  of  the  Scripture,  so  far  as  they  are  a  fence  to  the 

'  Records  of  the  Colony  and  Plantation  of  New  Haven,  1638- 
1649,  pp.  20,  21. 
'^  Ibid.,  pp.  no,  III. 


56  The  Colonies, 


moral  law,  being  neither  typical  nor  ceremonial,  nor 
having  a  reference  to  Canaan,  shall  be  accepted  as 
of  moral  equity,  and  as  God  shall  help,  shall  be  a 
constant  direction  for  all  proceedings  here  and  a  gen- 
eral rule  in  all  courts  of  this  jurisdiction,  how  to 
judge  between  party  and  party,  and  how  to  punish 
oflfenders  till  the  same  be  branched  out  into  particulars 
hereafter."  * 

The  following  enactments  were  made  with  reference 
to  the  observance  of  the  Sabbath  and  attendance  at 
church,  January  31,  1647:  "The  Court,  considering 
that  it  is  their  duty  to  do  the  best  they  can  that  the  law 
of  God  may  be  strictly  observed,  did  therefore  order  that 
whosoever  in  this  plantation  shall  break  the  Sabbath 
by  doing  any  of  their  ordinary  outward  occasions,  from 
sunset  to  sunset,  either  upon  the  land  or  upon  the  water, 
extraordinary  cases,  works  of  necessity  and  mercy  being 
excepted,  he  shall  be  counted  an  offender  and  shall  suf- 
fer such  punishment  as  the  particular  court  shall  judge 
mete  according  to  the  nature  of  the  oflfence."  ^ 

"  Whosoever  shall  profane  the  Lord's  day  or  any  part 
of  it,  either  in  sinful  servile  work,  or  by  unlawful  sport, 
or  otherwise,  whether  wilfully  or  in  careless  neglect, 
shall  be  duly  punished  by  fine,  imprisonment,  or  cor- 
porally, according  to  the  nature  and  measure  of  the  sin 
and  ofience.  But  if  the  Court  upon  examination,  by 
clear  and  satisfying  evidence,  find  that  the  sin  was 
proudly,  presumptuously  and  with  a  high  hand  com- 
mitted against  the  known  command  and  authority  of 
the  blessed  God,  such  a  person,  therein  despising  and 
reproaching  the  Lord,  shall  be  put  to  death,  that  all 

'  Revision  of  Feb.  2^,  1644-4^5,  p.  191. 

'  Records  of  the  Colony  and  Plantation  of  New  Haven,  iS^S- 
^6/9,  p.  358. 


New  Haven,  57 


others  may  fear  and  shun  such  provoking  rebellious 
courses.     Num.  xv.,  30-36."  ' 

' '  And  it  is  further  ordered  that  wheresoever  the 
ministry  of  the  Word  is  established  within  this  juris- 
diction, according  to  the  order  of  the  gospel,  every  per- 
son, according  to  the  mind  of  God,  shall  duly  resort 
and  attend  thereunto  upon  the  lyord's  days,  at  least, 
and  also  upon  days  of  public  fasting  or  thanksgiving 
ordered  to  be  generally  kept  and  observed.  And  if  any 
person  within  this  jurisdiction  shall  without  just  and 
necessary  cause  absent  or  withdraw  himself  from  the 
same,  he  shall,  after  due  means  of  conviction  used,  for 
ever)'  such  sinful  miscarriage,  forfeit  five  shillings  to 
the  plantation,  to  be  levied  as  other  fines."  ^ 

Charles  II.,  on  the  23d  of  April,  1662,  gave  a  char- 
ter to  John  Winthrop  and  others,  constituting  them  a 
body-politic  under  the  title,  ' '  Governor  and  Company 
of  the  English  Colony  of  Connecticut,  in  New  England, 
in  America. ' '  Hartford  and  New  Haven,  which  had 
hitherto  remained  separate  colonies,  accepted  this  char- 
ter, April  20,  1665,  and  thus  became  a  part  of  the 
colony  of  Connecticut. 

One  object  of  the  King  in  granting  this  charter,  as 
stated  therein,  was  that  "our  said  people  inhabiting 
there  may  be  so  religiously,  peaceably,  and  civilly 
governed,  as  their  good  hfe  and  orderly  conversation 
may  win  and  invite  the  natives  of  the  country  to  the 
knowledge  and  obedience  of  the  only  true  God  and 
Savior  of  mankind  and  the  Christian  faith  ;  which,  in 
our  royal  intentions,  and  the  adventurers  free  profession 
is  the  only  and  principal  end  of  this  plantation." 

This  expression  of  the  purpose  of  the  plantation, 
being  almost  identical  with  that  contained  in  other 
^Ibid.,  1653-1655,  p.  605.  '^  Ibid.,  p.  58S. 


58  The  Colonies. 


charters,  may  have  been  on  the  part  of  its  author  or 
authors  an  empty  form,  but  it  reflects,  nevertheless,  the 
public  sentiment  of  the  day,  and  reveals  one  of  the 
purposes  held  to  be  obligatory  in  all  such  enterprises. 

In  1770,  an  Act  was  passed  allowing  all  sober  persons 
who  conscientiously  differed  from  the  established  wor- 
ship and  ministry  of  the  colony,  to  meet  together  for 
worship  without  incurring  the  penalties  provided  in 
previous  laws  against  such  meetings,  and  against 
absence  from  the  recognized  services. ' 

The  Charter  of  1662  continued  to  be  the  organic  law 
of  the  State  of  Connecticut  until  1818,  with  the  addition 
of  only  four  brief  articles  ;  and  the  laws  upon  the  sub- 
ject of  religion  made  under  the  charter  continued  to  be 
in  force  throughout  and  beyond  the  colonial  period. 

8.  The  Confederation. — In  1643,  Articles  of  Con- 
federation betwixt  the  Plantations  of  Massachusetts, 
the  Plantations  under  the  government  of  Plymouth,  the 
Plantations  under  the  government  of  Connecticut,  and 
the  government  of  New  Haven  were  adopted  constitut- 
ing the  four  colonies  a  confederation,  under  the  title  of 
"The  United  Colonies  of  New  England,"  The  gov- 
ernment of  the  confederation  was  to  be  entrusted  to  a 
body  composed  of  two  Commissioners  from  each  of  the 
four  colonies. 

In  the  Preamble  to  the  Articles  of  Agreement,  they 
say  :  "  Whereas,  All  came  into  these  parts  with  one 
and  the  same  end  and  aim,  namely,  to  advance  the 
kingdom  of  the  I^ord  Jesus  Christ  and  to  enjoy  the 
liberties  of  the  gospel  in  purity  and  peace  :     .     .     ." 

It  was  solemnly  and  unanimouslj^  approved  and  con- 
cluded as  a  fundamental  agreement  upon  which  the 
combination  was  formed,  ' '  That  none  shall  be  admitted 
'  Acts  and  Laws  of  Connecticut,  ij^o-ij72,  p.  351. 


New  Haven.  59 


freemen  or  free  burgesses  within  this  jurisdiction  or  any 
part  of  it,  but  such  planters  as  are  members  of  some 
one  or  other  of  the  approved  churches  of  New  England  ; 
nor  shall  any  but  such  be  chosen  to  magistracy,  or  to 
carry  on  any  civil  judicature,  or  as  deputies  or  assist- 
ants, to  have  power  or  vote  in  establishing  laws,  or  in 
making  or  repealing  orders  ;  or  to  any  military  ofSce  or 
trust ;  nor  shall  any  other  but  church-members  have 
any  vote  in  any  such  elections."  ' 

"  This  Court,  thus  framed,  shall,  ist,  with  all  care  and 
diligence  from  time  to  time  provide  for  the  maintenance 
of  the  purity  of  religion  and  suppress  the  contrary, 
according  to  their  best  light  and  directions  from  the 
Word  of  God.  2dly,  though  they  humbly  acknowl- 
edge that  the  supreme  power  of  making  laws  and  of 
repealing  belongs  to  God  only,  and  that  by  Him  this 
power  is  given  to  Jesus  Christ  as  Mediator,  Matt, 
xxviii.,  19  ;  John  v.,  22  ;  and  that  the  laws  for  holiness 
and  righteousness  are  already  made  and  given  us 
in  the  Scriptures,  which,  in  matters  moral  or  of  moral 
equity,  may  not  be  altered  by  any  human  power  or 
authority.  .  .  .  Yet  civil  rulers  and  courts,  and 
this  General  Court  in  particular,  (being  instructed  by 
the  freemen  as  before,)  are  the  ministers  of  God  for  the 
good  of  the  people,  and  have  power  to  declare,  publish, 
and  establish,  for  the  Plantations  within  their  jurisdic- 
tion, the  laws  He  hath  made  ;  and  to  make  and  repeal 
orders  for  smaller  matters,  not  particularly  determined 
in  Scriptures,  according  to  the  more  general  rules  of 
righteousness,  and  while  they  stand  in  force,  to  require 
due  execution  of  them."  ' 

"  Forasmuch  as  the  Word  of  God  as  it  is  contained 


'  Code  of  New  Haven,  /6_$6,  pp.  562,  567. 
-  /bid.,  569. 


6o  The  Colonies. 


in  the  Holy  Scriptures  is  a  pure  and  precious  light,  by 
God,  in  His  free  and  rich  mercy,  given  to  His  people, 
to  guide  and  direct  them  in  safe  paths  to  everlasting 
peace.  And  for  that  the  preaching  of  the  same  in  the 
way  of  due  exposition  and  explanation,  by  such  as 
God  doth  furnish  and  send,  is,  through  the  presence 
and  power  of  the  Holj^  Ghost,  the  chief  ordinary 
means  appointed  by  God  for  conversion,  edification, 
and  salvation  ;  it  is  ordered  that  if  any  Christian,  so 
called,  shall  within  this  jurisdiction  behave  himself 
contemptuously  toward  the  word  preached,  or  any 
minister  thereof  called  and  faithfully  dispensing  the 
same  in  any  congregation,  either  by  interrupting  him 
in  his  preaching,  or  falsely  charging  him  with  error,  to 
the  disparagement  and  hindrance  of  the  work  of  Christ 
in  his  hands,  every  such  person  or  persons  shall  be 
duly  punished,  either  by  the  plantation  court  or  court 
of  magistracy,  according  to  the  quality  and  measure  of 
the  offence,  that  all  others  may  fear  to  break  out  in 
such  wickedness."  ' 

"  It  is  ordered  that  if  any  Christian  within  this  juris- 
diction shall  go  about  to  subvert  or  destroy  the  Chris- 
tian faith  or  religion  by  broaching,  publishing,  or 
maintaining  an}^  dangerous  error  or  heresy,  or  shall 
endeavor  to  draw  or  seduce  others  thereunto,  every 
such  person  so  offending  and  continuing  obstinate 
therein,  after  due  means  of  conviction,  shall  be  fined, 
banished,  or  otherwise  severely  punished."  '' 

On  September  5,  1644,  the  Commissioners  of  the 
United  Colonies  sent  to  the  colonies  the  following  for 
adoption  : 

"  Whereas,  The  most  considerable  persons  in  these 
colonies  came  to  these  parts  of  America  that  they 
'  Ibid.,  p.  588.  "  Jbid.,  p.  590. 


Rhode  Island.  6i 


might  enjoy  Christ  in  his  ordinances  without  disturb- 
ance ;  and 

"  Whereas,  Among  man}-  other  precious  mercies,  the 
ordinances  are  and  have  been  dispensed  among  us  with 
much  purity  and  power ;  the  Commissioners  took  it 
into  their  serious  consideration  how  some  due  mainten- 
ance according  to  God  might  be  provided  and  settled, 
both  for  the  present  and  future,  for  the  encourage- 
ment of  the  ministers  who  labor  therein,  and  concluded 
to  propound  and  commend  to  each  General  Court,  that 
those  who  are  taught  in  the  Word  in  the  several  plan- 
tations be  brought  together,  that  every  man  volun- 
tarily set  down  what  he  is  willing  to  allow  to  that  end 
and  use  ;  and  if  any  may  refuse  to  pay  a  meet  propor- 
tion, that  then  he  be  rated  with  authority  in  some  just 
and  equal  way  ;  and  if  after  this  any  man  withhold  or 
delay  due  payment,  the  civil  power  to  be  exercised  as 
in  other  just  debts."  ' 

In  September,  1656,  the  Commissioners  of  the  United 
Colonies,  upon  the  suggestion  of  the  magistrates  of 
Massachusetts  Bay  Colony,  "Proposed  to  the  several 
General  Courts  that  all  Quakers,  Ranters  and  other 
notorious  heretics  be  prohibited  coming  into  the  United 
Colonies ;  and  if  any  shall  hereafter  come  or  arise 
amongst  us  that  they  be  forthwith  secured  and  re- 
moved out  of  all  the  jurisdictions."  ^ 

9.  Rhode  Island. — Roger  Williams,  who  was  or- 
dained a  clergyman  of  the  Church  of  England,  became 
a  zealous  Puritan  soon  after  his  ordination.  In  163 1, 
at  the  age  of  twenty-five,  he  emigrated  to  Massachu- 
setts with  his  young  wife.     Arriving  in  Boston,   he 

'  Records  of  the  Colony  of  Connecticut  Prior  to  the  Union 
with  New  Haven,  1663,  p.  112. 
5  Ibid.,  p.  283. 


62  The  Colonies. 


refused  to  join  the  congregation  of  that  town  because 
they  would  not  make  public  declaration  of  their  re- 
pentance for  having  been  once  in  connection  with  the 
Church  of  England,  and  going  to  Salem  he  became 
assistant  minister  at  that  place,  but  was  soon  involved 
in  controvers}^  with  his  brethren,  which  waxed  so  hot 
and  so  disturbed  the  peace,  that  he  was  finally  banished 
in  1635.  Among  the  reasons  for  his  banishment  was 
his  denying  the  right  of  the  civil  government  to  impose 
faith  and  worship,  and  afl&rming  that  the  power  of  the 
civil  magistrate  extends  only  to  the  bodies,  goods,  and 
outward  state  of  men,  and  not  to  their  souls  and  con- 
sciences. He  went  to  what  is  now  Providence,  R.  I. , 
and  there  established  a  pure  democracy,  withholding 
from  the  body-politic  all  power  to  interfere  in  matters 
which  concern  man  and  his  Maker  only. 

In  1643  the  inhabitants  of  Providence,  Portsmouth, 
and  Newport,  upon  their  petition,  were  granted  ' '  a 
free  and  absolute  charter  of  incorporation,  to  be  known 
by  the  name  of  The  Incorporation  of  Providence  Plan- 
tations in  the  Narragansett  Bay  in  New  England,  with 
full  power  to  rule  themselves  ...  by  such  form 
of  civil  government  as  by  voluntary  consent  of  all,  or 
the  greater  part  of  them,  they  shall  find  most  suitable 
to  their  estate  and  condition." 

The  Commonwealth  of  England,  in  165 1,  claimed 
the  right  to  appoint  the  governor  of  the  Providence 
Plantations.  In  1663  Charles  II.  granted  a  new  charter 
securing  to  the  people  the  full  freedom  of  the  old  one. 
In  this  charter  the  King  says  : 

"  Whereas,  We  have  been  informed  by  the  humble 
petition  of  our  trusty  and  well-beloved  subject,  John 
Clarke,  on    the    behalf  of  Benjamin  Arnold     . 
(and  others),  that  they,  pursuing  with  peaceable  and 


Rhode  Island.  63 


loyal  minds  their  sober,  serious,  and  religious  inten- 
tions of  godly  edifying  themselves  and  one  another  in 
the  holy  Christian  faith  and  worship,  as  they  were  per- 
suaded ;  together  with  the  gaining  over  and  conversion 
of  the  poor  ignorant  Indian  natives  in  those  parts  of 
America  to  the  sincere  profession  and  obedience  of  the 
same  faith  and  worship  ;     .     .     . 

"  And  Whereas,  In  their  humble  address,  they  have 
freely  declared  that  it  is  much  in  their  hearts  (if  thej^ 
may  be  permitted)  to  hold  forth  a  lively  experiment, 
that  most  flourishing  civil  state  may  stand  and  best  be 
maintained,  and  that  among  our  English  subjects,  with 
a  full  liberty  in  religious  concernments  ;  and  that  true 
piet)^,  rightly  grounded  upon  gospel  principles,  will 
give  the  best  and  greatest  security  to  sovereignty,  and 
will  lay  in  the  hearts  of  men  the  strongest  obligation 
to  loyalty  ; 

' '  Now  know  ye  that  we,  being  willing  to  encourage  the 
hopeful  undertaking  of  our  said  loyal  and  loving  sub- 
jects, and  to  secure  them  in  the  free  exercise  and  en- 
joyment of  all  their  civil  and  religious  rights,  apper- 
taining to  them,  as  our  loving  subjects  ;  and  to  preserve 
unto  them  that  libertj^  in  the  true  Christian  faith  and 
worship  of  God  which  they  have  sought  with  so  much 
travail,  and  with  peaceable  minds  and  loyal  subjection 
to  our  royal  progenitors  and  ourselves,  to  enjoy  ;  and  be- 
cause some  of  the  people  and  inhabitants  of  the  same 
colonies  cannot  in  their  private  opinions  conform  to  the 
public  exercise  of  religion  according  to  the  liturgy,  forms 
and  ceremonies  of  the  Church  of  England,  or  take  or 
subscribe  the  oaths  and  articles  made  and  established 
in  that  behalf ;  and  for  that  the  same,  by  reason  of  the 
remote  distances  of  those  places,  will  (as  we  hope)  be 
no  breach  of  the  unity  and  uniformity  established  in 


64  The   Colonies. 


this  nation  ;  have  therefore  thought  fit,  and  do  hereby 
pubhsh,  grant,  ordain,  and  declare,  that  our  royal  will 
and  pleasure  is  that  no  person,  within  the  said  colony, 
at  any  time  hereafter,  shall  be  molested,  punished,  dis- 
quieted, or  called  in  question,  for  any  difierences  in 
opinion  in  matters  of  religion,  that  do  not  actually  dis- 
turb the  civil  peace  of  our  said  colony  ;  but  that  all  and 
every  person  and  persons  from  time  to  time,  and  at  all 
times  hereafter,  may  freely  and  fully  have  and  enjoy  his 
and  their  own  judgments  and  consciences  in  matters  of 
religious  concernments,  throughout  the  tract  of  land 
hereafter  mentioned  ;  they  behaving  themselves  peace- 
ably and  quietly,  and  not  using  their  liberty  to  licen- 
tiousness and  profaneness,  nor  to  the  civil  injury  or 
outward  disturbance  of  others.     .     .     ." 

This  charter  remained  in  force  as  the  fundamental 
law  of  the  colony  and  also  of  the  State  until  the  adop- 
tion of  the  first  State  Constitution,  Nov.  21-23,  1842. 

While  the  laws  of  the  colony  established  no  denomi- 
national churoh  and  provided  for  no  compulsory  attend- 
ance on  religious  services,  yet  not  only  was  a  profession 
of  Christianity  required  as  a  qualification  for  office,  but 
also  of  Protestantism.  From  1719  to  1783  the  following 
was  on  the  statute  book,  purported  to  have  been  en- 
acted in  1664  :  "  That  all  men  professing  Christianity, 
and  of  competent  estates,  and  of  civil  conversation,  who 
acknowledge  and  are  obedient  to  the  civil  magistrate, 
though  of  different  judgments  in  religious  affairs  (Ro- 
man Catholics  only  excepted)  .shall  be  admitted  free- 
men, and  shall  have  liberty  to  choose  and  be  chosen 
officers  in  this  colony,  both  military  and  civil. ' '  * 

There  were  no  laws  compelling  the  people  to  observe 

'  Records  of  the  Colony  of  Rhode  Island  and  Providence 
Plantations,  vol.  ii.,  p.  36. 


Rhode  Island.  65 


the  Sabbath  religiously,  but  certain  things,  allowable 
on  other  days  of  the  week,  were  prohibited  on  the 
Sabbath. 

On  the  2d  of  September,  1673,  it  was  "Voted  this 
Assembly  considering  that  the  King  hath  granted  us 
that  not  any  in  this  colony  are  to  be  molested  in 
the  liberty  of  their  consciences,  who  are  not  disturbers 
of  the  peace,  and  we  are  persuaded  that  a  most  flourish- 
ing government,  with  loyalty,  may  be  best  propagated 
where  liberty  of  conscience,  by  any  corporal  power, 
is  not  obstructed,  that  is  not  to  any  unchasteness  of 
body,  and  not  by  a  body  doing  any  hurt  to  a  body, 
neither  endeavoring  so  to  do,  and  although  we  know, 
by  man  not  any  can  be  forced  to  worship  God,  or  for 
to  keep  or  not  to  keep  holy  any  day  ;  but  forasmuch  as 
the  first  days  of  the  weeks,  it  is  usual  for  parents  and 
masters  not  to  employ  their  children  or  servants  as 
upon  other  days  ;  and  some  others  also  that  are  not 
under  such  government,  accounting  it  as  spare  time, 
and  so  spend  it  in  debaistness  or  tippling,  and  unlaw- 
ful games  and  wantonness,  and  most  abominally  there 
practised  by  those  that  lived  with  the  English,  at  such 
times  to  resort  to  towns  ;  therefore,  this  Assembly,  not 
to  oppose  or  propagate  any  worship,  but  as  by  prevent- 
ing debaistness,  although  we  know  masters  or  parents 
cannot,  and  are  not,  by  violence  to  endeavor  to  force 
any  under  their  government  to  any  worship  or  from 
any  worship,  that  is  not  debaistness  or  disturbant  to 
the  civil  peace,  but  they  are  to  require  them,  and  if  that 
will  not  prevail,  if  they  can,  they  should  compel  them 
not  to  do  what  is  debaistness,  or  uncivil,  or  inhuman, 
not  to  frequent  any  immodest  company  or  practices. 

"  Therefore,  by  his  Majesty's  authority,  it  is  enacted 
that  on  the  first  davs  of  the  weeks,  whoever  he  be  that 


66  The  Colonies. 


doth  let  any  have  any  drink,  that  he  or  any  other  is 
drunk  thereby,  besides  all  other  forfeitures  therefor,  for 
every  one  so  drunk  they  shall  forfeit  six  shillings  ;  and 
for  every  one  that  entertains  in  gaming  or  tippling  upon 
the  first  day  of  the  week,  he  shall  forfeit  six  shillings. 
And  by  his  Majesty's  authority  thereby  it  is  enacted, 
that  for  to  prevent  any  such  misdemeanors,  or  if  any 
are  so  guilty,  to  discover  them,  that  every  first  day  of 
the  week  in  every  town  in  this  colony  there  shall  be  a 
constable's  watch,  for  every  inhabitant  fit  to  watch  to 
take  his  turn  that  belongeth  to  the  town,  or  pay  for 
hiring  one,  so  for  one  or  more  to  watch  in  a  day,  as  the 
Town  Coimcil  judge  necessary,  to  restrain  any  debaist- 
ness,  or  immodesty,  or  concourse  of  people,  tippling  or 
gaming,  or  wantonness,  that  all  modest  assemblies  may 
not  be  interrupted  ;  especially  all  such  as  profess  they 
meet  in  the  worship  of  God  ;  if  some  of  them  will  be 
most  false  worshippers,  they  should  only  be  strove 
against  therefore  with  spiritual  weapons,  if  they  do  not 
disown  that  they  should  not  be  condemned,  whoever 
they  be,  that  be  unchaste  with  their  bodies,  or  with 
bodies  oppress,  or  do  violence  to  what  is  mortal  of  any 
man,  but  as  they  should  be  subject  to  such,  to  suffer 
for  such  transgressions,  parents  may  thereof  correct 
their  children,  and  masters  their  servants  ;  and  magis- 
trates should  be  a  terror  to  such  evil  doers. ' '  ' 

10.  Vermont. — Vermont  can  scarcely  be  said  to 
have  had  a  colonial  existence,  but  in  the  towns  which 
were  under  the  jurisdiction  of  New  York  the  Church 
of  England  was  favored  by  the  law  ;  and  in  the  towns 
that  acknowledged  the  jurisdiction  of  New  Hampshire 
or  Massachusetts,  the  Congregational  Church  was  the 
established  church. 

1  Ibid.,  pp.  503,  504. 


New   York.  67 

II.  New  York. — Under  the  Dutch  West  India 
Company,  chartered  in  162 1,  no  other  religion  was  to  be 
publicly  tolerated  or  allowed  in  New  Netherland  save 
that  then  taught  and  exercised  by  authority  of  the  Re- 
formed Church  in  the  United  Provinces.  Under  the 
royal  grants  to  James,  Duke  of  York  and  Albany,  1664 
and  1674,  the  Church  of  England  became  the  estab- 
lished church  of  the  Province.  In  both  cases,  how- 
ever, on  account  of  the  mixed  character  of  the  people 
and  the  almost  perpetual  conflicts  of  jurisdiction,  it  was 
impossible  to  put  the  establishment  in  anything  like 
uniform  and  rigorous  enforcement.  It  is  probable  also 
that  the  Duke  of  York  was  inclined  to  toleration. 

In  1673  each  town  was  empowered  to  make  laws 
against  Sabbath-breaking  and  other  immoralities.  In 
1695  a  law  was  enacted  of  which  the  following  was  the 
preamble,  viz.  : 

"  Whereas,  the  true  and  sincere  worship  of  God,  ac- 
cording to  His  holy  will  and  commandments,  is  often 
profaned  and  neglected  by  many  of  the  inhabitants  and 
sojourners  in  this  Province  who  do  not  keep  holy  the 
IvOrd's  day,  but  in  a  disorderly  manner  accustom  them- 
selves to  travel,  laboring,  working,  shooting,  fishing, 
sporting,  playing,  horse-racing,  frequenting  tippling- 
houses,  and  the  using  many  other  unlawful  exercises 
and  pastimes,  upon  the  Lord's  day,  to  the  great  scandal 
of  the  holy  Christian  faith,  be  it  enacted,"  etc. 

A  fine  of  six  .shillings  was  imposed  by  this  law  upon 
the  offences  specified  in  the  preamble  ;  a  justice  of  the 
peace  might  convict  on  his  own  sight ;  in  default  of 
payment  of  the  fine  the  ofi'ender  was  to  sit  in  the  stocks 
three  hours  ;  if  any  master  refused  to  pay  the  fine  im- 
posed on  a  negro  or  Indian  slave  or  .servant,  the  slave 
or  servant  was  to  be  whipped  thirteen  lashes  ;  it  was 


68  The  Colonies. 


lawful  to  travel  any  distance  under  twenty  miles  for 
the  purpose  of  attending  public  worship,  and  to  go  for 
a  physician  or  a  nurse. ' 

12.  New  Jersey. — The  Duke  of  York,  whose 
charter  covered  the  territory  southward  to  the  east  side 
of  the  Delaware  Bay,  granted  in  1664  the  territory, 
now  belonging  to  the  State  of  New  Jersey,  to  Lord 
John  Berkley  and  Sir  George  Carteret.  These  propri- 
etors divided  their  holding  by  a  line  running  from 
Barnegat  Creek  a  little  north  of  west  to  the  Rancocas  ; 
the  one  taking  the  southern  part,  which  was  called 
West  Jersey,  and  the  other  the  northern  part,  which 
was  called  East  Jersey.  The  line  of  division  was  after- 
wards made  to  run  northward  from  I^ittle  Egg  Harbor 
in  the  lower  part  of  Delaware  Bay.  Berkley  sold  West 
Jersey  to  a  company  of  Quakers,  and  in  1682  a  society 
of  Quakers,  under  the  lead  of  William  Penn,  bought 
East  Jersey  of  the  heirs  of  Carteret.  During  the  pro- 
prietary government,  there  was  no  uniform  church  and 
State  establishment,  but  the  multiplicity  of  proprietors 
and  the  conflict  between  diverse  interests  and  opinions 
led  the  proprietors  in  1702  to  surrender  their  right  of 
government  to  the  Crown,  when  the  Church  of  Eng- 
land became  the  established  church  of  the  province. 
Liberty  of  conscience,  however,  was  permitted  to  all  but 
Roman  Catholics. 

13.  Pennsylvania. — Charles  II.  granted  a  charter 
to  William  Penn  for  the  Province  of  Pennsylvania, 
March  4,  1681.  In  1682  Penn  promulgated  The 
Frame  of  Government  in  Pe7insylvania  in  America^  in 
the  preface  of  which  he  sa3'S  on  the  subject  of  the  rise 

'  Laws  of  New  York,  1691-1773,  vol.  i.,  pp.  23,  24.  New 
York,  1874  :  Lewis,  pp.  200,  201. 


Pennsylvania.  69 

and  end  of  government :  "  So  that  government  seems  to 
me  a  part  of  religion  itself,  a  thing  sacred  in  its  institu- 
tion and  end,  .  .  .  and  is  as  such  (though  a  lower, 
yet)  an  emanation  of  the  same  Divine  Power  that  is 
both  author  and  object  of  pure  religion." 

Among  the  laws  agreed  upon  in  England  b}-  the 
Governor  and  divers  freemen  of  the  province,  April 
20,  1682,  are  : 

' '  XXXV.  That  all  persons  living  in  this  Province 
who  confess  and  acknowledge  the  one  Almighty  and 
Eternal  God  to  be  the  Creator,  Upholder,  and  Ruler  of 
the  world,  and  that  hold  themselves  obliged,  in  con- 
science, to  live  peaceabl}-  and  justl}'  in  civil  society, 
shall  in  no  ways  be  molested  or  prejudiced  for  their  re- 
ligious persuasion  or  practice  in  matters  of  faith  and 
worship  ;  nor  shall  they  be  compelled  at  any  time  to 
frequent  or  maintain  anj-  religious  worship,  place,  or 
ministry  whatever. 

"  XXXVI.  That  according  to  the  good  example  of 
the  primitive  Christians,  and  the  ease  of  the  creation, 
every  first  day  of  the  week,  called  the  Lord's  day, 
people  shall  abstain  from  their  common  daily  labor, 
that  they  may  the  better  dispose  themselves  to  worship 
God  according  to  their  understandings. 

"XXXVII.  That,  as  a  careless  and  corrupt  ad- 
ministration of  Justice  draws  the  wrath  of  God  upon 
magistrates,  so  the  wildness  and  looseness  of  the  people 
provoke  the  indignation  of  God  against  a  country  ; 
therefore,  that  all  such  offences  against  God  as  swear- 
ing, cursing,  lying,  profane  talking,  drunkenness, 
drinking  of  healths,  obscene  words,  incest,  sodomy, 
rapes,  fornication,  and  other  uncleanness  (not  to  be  re- 
peated), ...  all  prizes,  stage  players,  cards,  dice, 
May-games,  gamesters,  masques,  revels,  bull-baitings. 


70  The  Colonies. 


cruelty,  looseness  and  irreligion,  shall  be  respectively 
discouraged  and  severely  punished." 

The  counties  of  "New  Castle,  Kent,  Sussex  upon 
Delaware  ' '  were  purchased  of  the  Duke  of  York  by 
Penn  in  1682,  and  were  added  to  Pennsylvania,  under 
the  title  of  "  The  Territories." 

William  and  Mary  upon  ascending  the  throne  of 
England  took  the  government  of  the  Provinces  and 
Territories  of  Pennsylvania  into  their  own  hands,  but 
afterwards,  August  26,  1695,  restored  to  Penn  his  for- 
mer possessions. 

In  the  Charter  of  Privileges  for  Pennsylvania, 
granted  by  Penn,  October  28,  1701,  he  says  : 

Article  i.  "  Whereas,  no  people  can  be  truly  happ)^, 
though  under  the  greatest  enjoyment  of  civil  liberties, 
if  abridged  of  the  freedom  of  their  consciences  as  to 
their  religious  profession  and  worship  ;  and  Almight}^ 
God,  being  the  only  Lord  of  conscience.  Father  of 
lights  and  spirits,  and  the  author,  as  well  as  the  ob- 
ject of  all  divine  knowledge,  faith,  and  worship,  who 
only  doth  enlighten  the  minds  and  persuade  and  con- 
vince the  understandings  of  people  ;  I  do  hereby  grant 
and  declare  that  no  person  or  persons  inhabiting  this 
Province  or  Territories,  who  shall  confess  and  acknowl- 
edge one  Almighty  God,  the  Creator,  Upholder,  and 
Ruler  of  the  world,  and  profess  him  or  themselves 
obliged  to  live  quietly  under  civil  government,  shall  be 
in  any  case  molested  or  prejudiced  in  his  or  their  person 
or  estate  because  of  his  or  their  conscientious  persua- 
sion or  practices ;  nor  be  compelled  to  frequent  or 
maintain  any  worship,  place,  or  ministry,  contrary  to 
his  or  their  mind  ;  or  to  do  or  suffer  any  other  act  or 
thing  contrary  to  their  religious  persuasion. 

' '  And  that  all  persons  who  also  profess  to  believe  in 


Maryland.  7 1 

Jesus  Christ,  the  Savior  of  the  worid,  shall  be  capable 
(notwithstanding  their  other  persuasions  and  practices 
in  point  of  conscience  or  religion)  to  serve  this  govern- 
ment in  any  capacity,  both  legislatively^  and  execu- 
tively.    .     .     .  " 

This  charter  remained  in  force  until  the  formation  of 
the  first  Constitution  in  1776. 

While  the  first  legislative  acts  of  the  colonj'^  recog- 
nized the  Christian  religion,  and  guaranteed  liberty  of 
conscience,  yet  it  was  enacted,  "  to  the  end  that  loose- 
ness, irreligion,  and  atheism  may  not  creep  in,  under 
pretence  of  conscience,  whoever  shall  speak  loosely  and 
profanely  of  Almightj'  God,  Jesus  Christ,  the  Holy 
Spirit,  or  Scriptures  of  truth,  and  is  thereof  legally  con- 
victed, shall  forfeit  and  pay  five  pounds,  and  be  im- 
prisoned five  daj^s  in  the  house  of  correction." 

All  legislators,  judges,  and  public  officers  were  re- 
quired to  subscribe  a  declaration  of  their  disbelief  in 
transubstantiation,  the  adoration  of  the  Virgin  Mary 
and  other  saints,  and  the  sacrifice  of  the  Romish  mass, 
as  superstitious  idolatries  ;  also  a  declaration  of  their 
belief  in  the  Holy  Trinity  and  in  the  divine  inspiration 
of  the  Scriptures. 

14.  Maryland. — Sir  George  Calvert,  who  was  made 
lyord  Baltimore,  in  1625,  being  much  disturbed  by  the 
French  in  the  possession  of  his  province  of  Avalon  in 
New  Foundland,  and  having  explored  the  territory 
bordering  on  the  Chesapeake  Baj^  in  1628,  returned  to 
England  and  petitioned  Charles  I.  to  grant  him  a  char- 
ter for  a  colony  to  be  settled  about  the  head  of  Chesa- 
peake Bay.  This  petition  w^as  granted,  but  as  he  died 
before  the  papers  were  executed,  the  charter  was  is- 
sued to  his  son  Cecilius  Calvert,  second  Lord  Balti- 
more, June  20,  1632.     The  charter  sets  forth  as  one  of 


72  The  Colonies. 


the  grounds  upon  which  it  is  granted,  the  fact  that 
the  grantee  is  ' '  animated  with  a  laudable  and  pious 
zeal  for  extending  the  Christian  religion."  It  goes  on 
to  grant  and  confirm  unto  the  said  Baron  of  Baltimore, 
his  heirs  and  assigns,  .  .  .  "the  patronages  and 
advowsons  of  all  churches  which  (with  the  increasing 
worship  and  religion  of  Christ)  within  the  said  region, 
islands,  islets,  and  limits  aforesaid,  hereafter  shall  hap- 
pen to  be  built  ;  together  with  license  and  faculty  of 
erecting  and  founding  churches,  chapels,  and  places  of 
worship,  in  convenient  and  suitable  places  within  the 
premises  ;  and  of  causing  the  same  to  be  dedicated  and 
consecrated,  according  to  the  ecclesiastical  laws  of  our 
kingdom  of  England." 

Sir  George  Calvert  had  become  a  Roman  Catholic  in 
1624,  and  in  the  light  of  that  fact  the  restriction  in  the 
last  clause  of  this  paragraph  may  fairly  be  interpreted 
as  prohibiting  the  establishment  of  the  Catholic  Church 
in  the  colony,  and  as  providing  for  the  establishment 
of  the  Church  of  England. 

Cecilius  Calvert,  second  I^ord  Baltimore,  sent  his 
brother  I^eonard  over  as  manager  of  an  expedition, 
which  consisted  of  two  hundred  persons.  The  expedi- 
tion sailed  from  Cowes,  in  the  Isle  of  Wight,  Novem- 
ber 22,  1633,  and  reached  its  destination,  March  27, 
1634.  The  founding  of  the  proprietary  colonies  was, 
in  a  large  measure,  a  business  enterprise  on  the  part  of 
the  proprietors,  and  as  their  interest  lay  in  the  speedy 
settlement  of  their  estates  in  the  new  world,  they  were 
ready  to  receive  respectable  and  thrifty  emigrants  from 
all  countries  and  of  all  religious  persuasions.  Among 
other  inducements  they  offered  religious  toleration. 
Such  a  consideration,  together  with  the  prohibition  in 
the  charter  as  to  the  establishment  of  the  Roman  Catho- 


Maryla7id.  73 

lie  Church,  may  have  contributed  to  the  determination 
of  Lord  Baltimore  to  make  religious  tolerance  a  promi- 
nent feature  of  the  new  colony.  He  instructed  his 
governor  and  commissioners  to  cause  all  acts  of  the 
Roman  Catholic  religion,  on  shipboard  going  over,  to 
be  done  as  privately  as  possible  ;  that  they  instruct 
the  Roman  Catholics  to  abstain  from  discourse  on  mat- 
ters of  religion  ;  and  that  they  treat  the  Protestants 
with  as  much  mildness  and  favor  as  justice  will  per- 
mit. It  appears  that  he  promisedliberty  of  conscience, 
and  offered  lands  to  a  colony  of  Puritan  refugees  from 
Virginia  ;  and  that  he  sent  a  commission  to  Boston  to 
invite  Puritans  from  Massachusetts  Bay  to  settle  in 
Maryland,  offering  them  lands.  There  can  hardly  be  a 
doubt,  however,  that  he  was  an  enlightened  and  sincere 
believer  in  religious  toleration,  and  that  he  was  moved 
to  this  determination  by  principle,  as  well  as  policy. 

On  the  2ist  day  of  April,  1649,  an  Act  of  Toleration 
was  passed  and  was  confirmed  by  the  Lord  Proprietary 
August  26,  1650.  It  contained  the  following  provi- 
sions, viz.  : 

''An  Act  Concerning  Religion.  Forasmuch  as  in  a 
well  governed  and  Christian  Commonwealth,  matters 
concerning  religion  and  the  honor  of  God  ought,  in  the 
first  place,  to  be  taken  into  serious  consideration,  and 
endeavored  to  be  settled  ;  Be  it  therefore  ordered  and 
enacted,  by  the  Right  Honorable  Cecilius  Lord  Baron 
of  Baltimore,  absolute  Lord  and  Proprietary  of  this 
Province,  with  the  advice  and  consent  of  this  General 
Assembly  ;  that  whatsoever  person  or  persons  within 
this  Province  and  islands  thereunto  belonging  shall 
from  henceforth  blaspheme  God,  that  is,  curse  Him  or 
deny  our  Savior  Jesus  Christ  to  be  the  son  of  God,  or 
shall  den}'  the  Holj^  Trinity,  the  Father,  Son,  and  Holy 


74  The  Colo7iies. 


Ghost,  or  the  Godhead  of  any  of  said  three  persons  of 
the  Trinity,  or  the  unity  of  the  Godhead  ;  or  shall  use 
or  utter  any  reproachful  speeches,  words,  or  language 
concerning  the  said  Holy  Trinity,  or  any  of  the  said 
three  persons  thereof;  shall  be  punished  with  death 
and  confiscation  or  forfeiture  of  all  his  or  her  lands  or 
goods  to  the  L,ord  Proprietary  and  his  heirs.     .     .     . 

"  And  be  it  also  enacted,  by  the  authority  and  with 
the  advice  and  assent  aforesaid,  that  whatsoever  person 
or  persons  shall  from  henceforth  use  or  utter  any  re- 
proachful words  or  speeches  concerning  the  blessed 
Virgin  Mary,  the  mother  of  our  Savior,  or  the  Holy 
Apostles  or  Evangelists,  or  any  of  them,  shall  in  such 
case  for  the  first  offence  forfeit  to  the  said  Lord  Proprie- 
tary the  sum  of  five  pound  sterling  or  the  value  there- 
of. ..  .  And  that  every  such  offender  or  offenders 
for  every  second  offence  shall  forfeit  ten  pound  sterling 
or  the  value  thereof,  .  ,  .  And  that  every  person 
or  persons  before  mentioned  offending  herein  the  third 
time,  shall  for  such  third  offence  forfeit  all  his  lands 
and  goods,  and  be  forever  banished  and  expelled  out  of 
this  Province. 

"  And  be  it  also  further  enacted,  by  the  same  author- 
ity, advice,  and  assent,  that  whatsoever  person  or 
persons  shall  from  henceforth,  upon  any  occasion  of 
offence  or  otherwise,  in  a  reproachful  manner  or  way 
declare,  call,  or  denominate  any  person  or  persons 
whatsoever  inhabiting,  residing,  trafficking,  trading,  or 
commercing  within  this  Province,  or  within  any  ports, 
harbors,  creeks,  or  havens,  to  the  same  belonging,  an 
Heretic,  Schismatic,  Idolator,  Puritan,  Independent, 
Presbj'terian,  Popish  priest,  Jesuit,  Jesuited  papist, 
lyUtheran,  Calvinist,  Anabaptist,  Brownist,  Antinomian, 
Barrowist,  Roundhead,  Separatist,  or  any  other  name 


Maryland.  75 

or  term,  in  a  reproachful  manner,  relating  to  the  matter  of 
religion,  shall  for  every  such  oifence  forfeit  and  lose  the 
sum  of  ten  shillings  sterling,  or  the  value  thereof,  to 
be  levied  on  the  goods  and  chattels  of  every  such  of- 
fender or  offenders,  the  one  half  thereof  to  be  forfeited 
and  paid  unto  the  person  and  persons  of  whom  such 
reproachful  words  were  or  shall  be  spoken  or  uttered  ; 
and  the  other  half  thereof  to  the  Lord  Proprietary  and 
his  heirs,  Lords  and  Proprietaries  of  this  Province.  But 
if  such  person  or  persons  who  shall  at  any  time  utter  or 
speak  any  such  reproachful  words  or  language,  shall 
not  have  goods  or  chattels  sufl&cient  and  overt,  within 
this  Province,  to  be  taken  to  satisfy  the  penalty  afore- 
said, or  that  the  same  be  not  otherwise  speedily  satisfied, 
then  the  person  or  persons  so  offending  shall  be  publicly 
whipped,  and  shall  suffer  imprisonment  without  bail 
or  mainprise  until  he,  she,  or  they,  respectively,  shall 
satisfy  the  party  so  offended  or  grieved  by  such  re- 
proachful language,  by  asking  him  or  her  respectively 
for  forgiveness  publicl)^  for  such  his  offence,  before  the 
magistrate  or  chief  officer  or  officers  of  the  town  or  place 
where  such  offence  shall  be  given. 

"  And  be  it  further  likewise  enacted,  by  the  authority 
and  consent  aforesaid,  that  every  person  and  persons, 
within  this  Province,  that  shall  at  any  time  hereafter 
profane  the  Sabbath  or  Lord's  day,  called  Sunday,  by 
frequent  swearing,  drunkenness,  or  by  any  uncivil  or 
disorderly  recreation,  or  by  working  on  that  day,  when 
absolute  necessity  doth  not  require  it,  shall  for  every 
such  offence  forfeit  2s.  6d.  sterling,  or  the  value  thereof, 
and  for  the  second  offence  55.  sterling,  or  the  value 
thereof;  and  for  the  third  offence,  and  so  for  every  time 
he  shall  offend  in  like  manner  afterwards,  10^.  sterling, 
or  the  value  thereof.     .     .     . 


76  The  Colonies. 


' '  And  whereas,  the  inforcing  of  conscience  in  matters 
of  religion  hath  frequently  fallen  out  to  be  of  dangerous 
consequences,  in  those  Commonwealths  where  it  hath 
been  practised ;  and  for  the  more  quiet  and  peaceable 
government  of  this  Province,  and  the  better  to  preserve 
mutual  love  and  amity  amongst  the  inhabitants  there- 
of;  Be  it  therefore,  also,  by  the  lyord  Proprietary,  with 
the  advice  and  consent  of  this  Assembly,  ordained  and 
enacted  (except  as  in  this  present  Act  is  before  declared 
and  set  forth)  that  no  person  or  persons  whatsoever, 
within  this  Province,  or  the  islands,  ports,  harbors, 
creeks,  or  havens  thereunto  belonging,  professing  to 
believe  in  Jesus  Christ,  shall  from  henceforth  be  any 
ways  troubled,  molested,  or  discountenanced  for,  or  in 
respect  of  his  or  her  religion,  nor  in  the  free  exercise 
thereof  within  this  Province  or  the  islands  thereunto 
belonging  ;  nor  any  way  compelled  to  the  belief  or 
exercise  of  any  other  religion  against  his  or  her  consent, 
so  as  they  be  not  unfaithful  to  the  Lord  Proprietary,  or 
molest  or  conspire  against  the  civil  government  estab- 
lished or  to  be  established  in  this  Province  under  him 
or  his  heirs. ' '  ' 

It  is  said  that  this  Act  is  the  first  instance  on  this 
continent  in  which  religious  liberty  was  proclaimed  by 
law.  It  has  been  disputed  whether  the  Protestants  or 
the  Roman  Catholics  were  in  the  majority  in  the  Pro- 
vince and  in  the  General  Assembly  at  this  time,  and  to 
which  of  these  parties  the  credit  of  this  Act  belongs. 
The  fact  that  there  were  Protestants  enough  in  the 
colony  at  the  time  to  make  this  a  disputed  question,  is 
itself  evidence  that  the  Catholic  Proprietary  had,  from 
the  first,  adopted  the  principle  or  the  rule  of  tolera- 
tion. 

*  Archives  of  BTaryland  Assembly,  vol.  i.,  pp.  244-247. 


Maryland.  jj 

In  1652  the  royal  government  of  England  having  been 
superseded  by  the  Commonwealth,  commissioners  were 
sent  over  to  Maryland,  who,  co-operating  with  the 
Puritans,  succeeded  in  establishing  the  authority  of 
the  Commonwealth  in  the  colony. 

''  A?i  Act  CoJicertihig  Religion.  It  is  enacted  and 
declared  in  the  name  of  his  Highness,  the  Lord  Protec- 
tor, with  the  consent  and  the  authority  of  the  present 
General  Assembly,  that  none  who  profess  and  exercise 
the  popish  religion,  commonly  known  by  the  name  of 
the  Roman  Catholic  religion,  can  be  protected  in  this 
Province  by  the  laws  of  England,  formerly  established 
and  yet  unrepealed  ;  nor  by  the  government  of  the 
Commonwealth  of  England,  Scotland,  and  Ireland, 
and  the  dominions  thereunto  belonging,  published  by 
his  Highness  the  I^ord  Protector,  but  are  to  be  restrained 
from  the  exercise  thereof;  Therefore  all  and  every 
person  or  persons  concerned  in  the  law  aforesaid  are 
required  to  take  notice. 

' '  Such  as  profess  faith  in  Jesus  Christ  (though  dif- 
fering in  judgment  from  the  doctrine,  worship,  and  dis- 
cipline publicly  held  forth),  shall  not  be  restrained 
from,  but  shall  be  protected  in,  the  profession  of  the 
faith,  and  exercise  of  their  religion,  so  as  they  abuse 
not  this  liberty  to  the  injury  of  others,  or  the  disturb- 
ance of  the  public  peace  on  their  part ;  provided,  that 
this  liberty  be  not  extended  to  popery  or  prelacy,  nor 
to  such  as  under  the  profession  of  Christ  hold  forth  and 
practice  licentiousness."  ' 

"It  is  enacted  that  every  person  or  persons  within 
this  Province  that  shall  be  lawfull}^  convicted  of  swear- 
ing, shall  be  liable  to  pay  for  every  oath  ten  pounds  of 
tobacco.     .     .     ." 

'  Ibid.,  vol.  ii.,  pp.  340,  341. 


/« 


The  Colonies. 


No  work  shall  be  done  on  the  Sabbath  day,  but  that 
which  is  of  necessity  and  charity  to  be  done.  No  in- 
ordinate recreations,  as  fowling,  fishing,  hunting,  or 
other,  no  shooting  of  guns  shall  be  used  on  that  day 
except  in  case  of  necessity. 

Whoever  shall  be  lawfully  convicted  of  the  breach 
of  any  such  law  shall  be  liable  to  pay  one  hundred 
pounds  of  tobacco,  half  whereof  shall  be  to  the  informer 
and  the  other  half  to  the  public  use.' 

In  1657  the  proprietary  government  was  restored, 
and  Lord  Baltimore  issued  the  following  order  : 

' '  His  Lordship  wills  and  requires  his  said  Lieutenant 
and  Council  that  the  law  in  this  said  Province  entitled 
All  Act  Concer7iing  Religion,  and  passed  heretofore 
there  with  his  Lordship's  assent,  whereby  all  persons 
who  profess  to  believe  in  Jesus  Christ  have  liberty  of 
conscience  and  free  exercise  of  their  religion,  there  be 
duly  observed  in  the  said  Province  by  all  the  inhabi- 
tants thereof ;  and  that  the  penalties  mentioned  in  the 
said  Act  be  duly  put  in  execution  upon  any  offenders 
against  the  same  or  any  part  thereof. ' '  ^ 

The  members  of  the  Church  of  England,  though  a 
very  small  minority  of  the  population,  made  frequent 
and  strenuous  efibrts  to  secure  the  establishment  of 
their  church  in  the  colony  by  the  home  government, 
but  by  the  firm  and  reasonable  opposition  of  Baltimore 
were  defeated.  At  length,  after  the  close  of  the 
English  revolution,  making  occasion  of  the  failure 
of  Lord  Baltimore's  deputies  to  proclaim  William  and 
Mar}',  they  induced  the  King  and  Queen  to  take  the 
government  into  their  own  hands,  and  the  Church 
of  England  was  made  the  established  church  of  the 
Province. 

'  Ibid.,  pp.  343,  344.  ^  Ibid.,  Council  I.,  325. 


Carolina.  79 

15.  Carolina. — Charles  II.,  on  the  24th  of  March, 
1663,  granted  a  charter  to  Edward,  Earl  of  Clarendon, 
and  others,  erecting,  ordaining,  and  incorporating  a 
province  to  be  called  the  Province  of  Carolina,  extend- 
ing from  31  °  to  36  °  N.  latitude,  from  the  mouth  of  the 
Satilla  River  in  Georgia  to  Albemarle  Sound.  In  1665 
a  second  charter  was  given  extending  the  limits  north- 
ward to  36  °  30',  and  southward  to  29  °,  including  all 
the  territory  between  the  present  northern  boundary'  of 
North  Carolina  and  a  point  sixty-five  miles  south  of  St. 
Augustine,  Fla. 

The  first  charter  sets  forth,  as  one  of  the  grounds 
upon  which  it  is  granted,  the  fact  that  the  incorpora- 
tors were  ' '  excited  with  a  laudable  and  pious  zeal  for 
the  propagation  of  the  Christian  faith."  Article  3d 
gives  them  "  the  patronage  and  advowsons  of  all  the 
chtuches  and  chapels  which,  as  Christian  religion  shall 
increase  within  the  country,  isles,  islets,  and  limits 
aforesaid,  shall  happen  hereafter  to  be  erected  ;  together 
with  license  and  power  to  build  and  found  churches, 
chapels,  and  oratories,  in  convenient  and  fit  places, 
within  the  said  bounds  and  limits,  and  to  cause  them 
to  be  dedicated  and  consecrated  according  to  the  eccle- 
siastical laws  of  our  kingdom  of  England. ' ' 

i8th.  "  And  because  it  may  happen  that  some  of  the 
people  and  inhabitants  of  the  said  Province  cannot,  in 
their  private  opinions,  conform  to  the  public  exercises 
of  religion  according  to  the  liturgies,  forms,  and  cere- 
monies of  the  Church  of  England,  or  take  and  sub- 
scribe the  oaths  and  articles  made  and  established  in 
that  behalf ;  and  for  that  the  same,  by  reason  of  the 
remote  distances  of  these  places,  will,  we  hope,  be  no 
breach  of  the  unity  and  uniformity  established  in  this 
nation  ;  our  will  and  pleasure  therefore  is,  and  we  do 


So  TJic   Colonics. 


by  these  presents,  for  us,  our  heirs  and  successors, 
give  and  grant  unto  the  said  Edward,  Earl  of  Claren- 
don .  .  .  full  and  free  license,  liberty,  and  authority 
by  such  legal  ways  and  means  as  they  shall  think  fit 
to  give  and  to  grant  unto  such  person  or  persons  in- 
habiting and  being  within  the  said  Province,  or  any 
part  thereof,  who  really  in  their  judgments,  and  for 
conscience  sake  cannot,  or  shall  not  conform  to  the 
said  liturgy  and  ceremonies,  and  take  and  subscribe 
the  oaths  and  articles  aforesaid,  or  any  of  them,  indul- 
gencies  and  dispensations  in  that  behalf,  for  and  during 
such  time  and  times,  and  with  such  limitations  and 
restrictions  as  they,  the  said  .  .  .  shall  in  their 
discretion  think  fit  and  reasonable  ;  and  with  this  ex- 
press proviso  and  limitation,  also,  that  such  person  or 
persons  ...  do  not  in  any  wise  .  .  .  scan- 
dalize or  reproach  the  said  liturgy,  forms,  and  ceremo- 
nies, or  anything  relating  thereunto,  or  any  person  or 
persons  whatsoever,  for  or  in  respect  of  his  or  their  use 
or  exercise  thereof,  or  his  or  their  obedience  and  con- 
formity thereunto." 

This  Article  was  included  in  the  second  charter,  ex- 
cepting that  after  the  words  ' '  think  fit  and  reasonable, ' ' 
and  in  place  of  what  follows  thereafter,  the  following 
provision  is  added,  viz.  : 

' '  And  that  no  person  or  persons  unto  whom  such 
liberty  shall  be  given  shall  be  any  way  molested,  pun- 
ished, disquieted,  or  called  in  question  for  any  differ- 
ences in  opinion  or  practice,  in  matters  of  religious 
concernments,  who  do  not  actually  disturb  the  civil 
peace  of  the  Province,  county,  or  colony  that  they  shall 
make  their  abode  in.  But  all  and  every  such  person 
and  persons  may  from  time  to  time,  and  at  all  times, 
freely  and  quietly  have  and  enjoy  his  and  their  judg- 


Carolina.  8 1 

ments  and  consciences  in  matters  of  religion,  through- 
out all  the  said  Province  or  colony,  they  behaving 
themselves  peaceably  and  not  using  this  liberty  to 
licentiousness,  nor  to  the  civil  injury  or  outward  dis- 
ttubance  of  others." 

In  the  Fundamental  Constitutioiis  of  Carolina,  pre- 
pared by  John  Locke  in  1669,  and  amended  by  the 
Earl  of  Shaftesbury,  are  the  following  provisions  and 
requirements,  viz.  : 

"  96.  As  the  country  comes  to  be  sufiiciently 
planted  and  distributed  into  fit  divisions,  it  shall  be- 
long to  the  Parliament,  to  take  care  for  the  building 
of  churches  and  the  public  maintenance  of  divines  to 
be  emplo5^ed  in  the  exercise  of  religion  according  to 
the  Church  of  England,  which  being  the  only  true  and 
orthodox  and  the  national  religion  of  all  the  King's 
dominions,  is  so  also  of  Carolina ;  and  therefore  it 
alone  shall  be  allowed  to  receive  public  maintenance 
by  grant  of  Parliament.' 

"97.  .  .  .  And  seven  or  more  persons  agreeing 
in  any  religion  shall  constitute  a  church  or  profession, 
to  which  they  shall  give  some  name  to  distinguish  it 
from  others. 

"  98.  The  terms  of  admittance  and  communion 
with  any  church  or  profession  shall  be  written  in  a 
book,  and  therein  be  subscribed  by  all  the  members  of 
said  church  or  profession  ;  which  book  shall  be  kept 
by  the  public  register  of  the  precinct  wherein  they 
reside. 

"  100.  In  the  terms  of  communion  of  any  church  or 
profession,    these   following   shall   be   three ;   without 

^  It  is  said  that  this  article  was  drawn  up  and  inserted  in  the 
Fundamental  Constitutions  by  some  of  the  Proprietors  against 

the  judgment  of  Mr.  Locke. 

6 


82  The  Colonies. 


which  no  agreement  or  assembly  of  men,  upon  pretence 
of  religion,  shall  be  counted  a  church  or  profession, 
within  these  rules  :  ist.  That  there  is  a  God.  2d.  That 
God  is  publicly  to  be  worshipped.  3d.  That  it  is  lawful 
and  the  duty  of  every  man,  being  thereunto  called  by 
those  that  govern,  to  bear  witness  to  truth.    .    .    . 

"loi.  No  person,  above  seventeen  years  of  age, 
shall  have  any  benefit  or  protection  of  the  law,  or  be 
capable  of  any  place  of  profit  or  honor,  who  is  not  a 
member  of  some  church  or  profession,  having  his  name 
recorded  in  some  one,  and  but  one,  religious  record  at 
once." 

These  Fundamental  Constitutions  were  abrogated  by 
the  Lords  Proprietors  in  April,  1693,  and  the  govern- 
ment was  carried  on  again  under  the  provisions  of  the 
charter.  The  charter  was  not  consistent  in  its  provi- 
sions relating  to  religion.  One  part  of  it  guarantees 
religious  toleration  to  the  settlers  ;  another  furnishes  a 
basis  for  the  establishment  of  the  Church  of  England. 
It  was  the  interest  of  the  proprietors,  and  their  purpose, 
as  a  body,  to  faithfully  observe  the  guaranty  of  religious 
freedom,  but  the  "  Society  for  the  Propagation  of  the 
Gospel  in  Foreign  Parts,"  incorporated  June  16,  1701, 
construed  its  mission  to  the  colonies  in  America  to  be 
the  establishment  of  the  Church  of  England,  and  pur- 
sued that  mission  in  Carolina  with  almost  fanatical 
zeal,  basing  their  action  on  the  provisions  of  the 
charter,  which  gave  to  the  proprietors  license  and 
power  to  build  churches  and  to  cause  them  to  be  dedi- 
cated according  to  the  ecclesiastical  laws  of  England. 
The  movement  was  finally  successful,  and  the  Church 
of  England  became  the  established  church  of  both  the 
Carolinas,  and  continued  to  be  so  throughout  the 
colonial  period. 


Georgia.  83 

16.  Georgia.—  General  James  Oglethorpe,  having 
been  appointed  a  trustee  for  the  relief  of  insolvent 
debtors  in  England,  conceived  a  plan  for  the  formation 
of  a  colony  in  America,  to  improve  their  condition,  and 
to  afford  a  refuge  for  the  persecuted  Protestants  of 
Europe.  He  organized  a  company  for  colonization,  to 
which  a  charter  was  granted  by  George  II.,  June  9, 
1732.  The  King  says  in  the  charter  :  "  Whereas,  We 
are  credibly  informed  that  many  of  our  poor  subjects 
are,  through  misfortunes  and  want  of  employment,  re- 
duced to  great  necessit}',  inasmuch  as  by  their  labor 
they  are  not  able  to  provide  a  maintenance  for  them- 
selves and  families  ;  and  if  they  had  means  to  defray 
their  charges  of  passage  and  other  expenses  incident  to 
new  settlements,  they  would  be  glad  to  settle  in  any 
of  our  provinces  in  America  ;  .  .  .  A?id  whereas 
we  think  it  highly  becoming  our  crown  and  royal  dig- 
nity ...  to  extend  our  fatherly  compassion  even 
to  the  meanest  and  most  infatuated  of  our  people,  and 
to  relieve  the  wants  of  our  above-mentioned  poor  sub- 
jects ;  and  that  it  will  be  highly  conducive  for  accom- 
plishing those  ends  that  a  regular  colony  of  said  poor 
people  be  settled  and  established  in  the  southern  terri- 
tories of  Carolina ;  .  .  .  Know  ye,  therefore,  for 
the  considerations  aforesaid  .  .  .  ordained,  con- 
stituted, and  appointed  ...  be  and  shall  be  one 
body  politic  and  corporate  in  deed  and  in  name,  by  the 
name  of  the  Trustees  for  establishing  the  colony  of 
Georgia  in  America.     .     .     . " 

"  And  for  the  greater  ease  and  encouragement  of  our 
loving  subjects  and  such  others  as  shall  come  to  in- 
habit in  our  said  colony,  we  do  by  these  presents  .  .  . 
grant,  establish,  and  ordain  that,  forever  hereafter, 
there  shall  be  a  liberty  of  conscience  allowed  in  the 


84  The  Colo7iies. 


worship  of  God  to  all  persons  inhabiting,  or  which 
shall  inhabit  or  be  resident  within  our  said  Province  ; 
and  that  all  such  persons,  except  papists,  shall  have  a 
free  exercise  of  religion,  so  they  be  content  with  the 
quiet  and  peaceable  enjoyment  of  the  same,  not  giving 
oifence  or  scandal  to  the  government.  .  .  .  And 
we  do  hereby  grant  and  ordain  that  such  person  or 
persons,  for  the  time  being,  as  shall  be  thereunto  ap- 
pointed by  the  said  corporation  .  .  .  shall  have 
full  power  and  authority  to  administer  and  give  the 
oaths,  appointed  by  an  Act  of  Parliament,  made  in  the 
first  year  of  the  reign  of  our  late  royal  father,  to  be 
taken,  instead  of  the  oaths  of  allegiance  and  supremacy, 
and  also  the  oath  of  abjuration,  .  .  .  and,  in  like 
cases,  to  administer  the  solemn  affirmation  to  any  of 
the  persons  commonly  called  Quakers  in  such  manner 
as  by  the  laws  of  our  realm  of  Great  Britain  the  same 
may  be  administered.     .     .     . " 

The  Trustees  of  the  new  colony  regarded  themselves 
as  charged  with  responsibility  for  the  spiritual  condi- 
tion of  the  inhabitants  and  for  the  conversion  of  the 
Indians,  and  they  engaged  Rev.  John  Wesley  to  go 
out  as  a  missionary.  Wesley  went  out  in  1735,  accom- 
panied by  his  brother  Charles  and  two  others,  but 
notwithstanding  that  he  was  at  the  time  a  high  church- 
man, and  notwithstanding  that  he  had  not  yet  ex- 
perienced what  he  afterwards  regarded  as  Christian 
conversion,  yet  it  appears  that  he  was  more  zealous  to 
turn  the  people  from  their  wicked  ways  than  to  secure 
the  establishment  of  the  Church  of  England.  His  pub- 
lic rebukes  and  the  exercise  of  his  ecclesiastical  author- 
ity in  denying  the  privileges  of  the  communion  to 
persons  who  in  his  opinion  had  rendered  themselves 
unworthy  by  wrongdoing  unrepented  of,  brought  upon 


Deductions  from  the  History.  85 

him  a  persecution  which  was  intended  to  drive  him 
from  the  colony,  and  did  canse  him  to  return  to  England 
in  1738. 


CHAPTER  III. 

DEDUCTIONS   FROM    THE   HISTORY. 

It  appears  from  the  historical  survey  we  have  made, 
that  up  to  the  time  of  the  colonization  of  America  the 
union  of  civil  and  religious  institutions  had  been  uni- 
versal. It  appears  also  that  in  the  various  colonial 
governments  founded  in  America,  toleration,  when  se- 
cured, was  only  the  separation  of  some  particular  sect 
of  Christians,  not  of  Christianity  itself,  from  the  civil 
institutions.  Even  in  the  fundamental  law  of  the 
Province  of  Rhode  Island,  a  Christian  purpose  is  ex- 
pressly stated  and  a  particular  form  of  Christianity 
(Protestantism)  was  required  as  a  qualification  for 
office. 

In  the  frame  of  government  of  Pennsj'lvania,  pre- 
pared by  the  proprietor,  William  Penn,  while  the 
principle  of  toleration  was  most  firmly  established,  the 
Christian  character  of  the  government  was  at  the  same 
time  most  positively  asserted,  and  the  most  rigid  pro- 
visions made  for  its  establishment.  In  the  colonial 
governments,  of  larger  religious  freedom,  no  discrim- 
ination was  made  between  the  various  divisions  of 
Protestantism,  but  they  were  Protestant  as  against 
Roman  Catholicism.  In  those  of  largest  freedom,  no 
discrimination  was  made  between  the  various  divisions 
of  the  Christian  church,   but  they  were  Christian  as 


86  Deductions  front  the  History. 

against  all  other  forms  of  religion,  and  against  unbelief. 
Not  one  was  negative,  or  neutral,  on  the  subject  of 
Christianity. 

Thus  far,  the  union  of  the  religion  of  a  people  with 
their  civil  institutions  is  a  universal  fact.  Two  differ- 
ent interpretations  may  be  put  upon  the  fact : 

I  St.  The  universal  fact  may  be  taken  as  revealing  a 
law  of  nature.  Man  is  by  the  constitution  of  his  nature 
religious,  as  well  as  social ;  therefore,  his  religious  and 
social  sentiments  will  be  necessarily  blended  in  all  their 
manifestations.  Man  will  be  religious  in  his  social 
institutions,  just  as  he  is  social  in  his  religious  insti- 
tutions. No  antecedent  purpose  or  effort  has  been  re- 
quired to  bring  about  a  union  ot  the  civil  and  religious 
institutions  of  mankind,  for  the  reason  that  such  union 
is  the  primordial  and  natural  state  of  things.  Purpose 
and  effort  have  been  necessary  to  effect  a  separation 
between  them,  for  the  reason  that  the  separation  is  a 
secondary  and  adventitious  state  of  things.  Therefore, 
any  effort  to  accomplish  a  complete  separation  will  be 
an  effort  against  nature,  and  will  prove  to  be  either 
futile  or  destructive. 

2d.  The  union  of  civil  and  religious  institutions,  al- 
though primordial,  is  to  be  regarded  as  a  low  condition 
which  is  destined  to  be  abolished  by  the  operation  of 
the  forces  of  progress,  which  are  ever  present  in  nature, 
either  as  latent  or  potential  energy.  Conflict  has  been 
necessary  to  convert  the  one  form  of  energy  into 
the  other.  The  striking  of  the  steel  on  the  flint  is 
necessary  to  bring  out  the  spark  ;  so  has  conflict  been 
necessary  to  kindle  the  light  of  liberty.  When  any 
party  becomes  so  strong  as  to  have  no  fear  of  the  opposi- 
tion, it  will  assume  paternal  prerogatives,  no  matter 
what  may  be  the  form  of  government  or  the  character  of 


Deductions  from  the  History.  87 

the  constitutional  restraints.  An  equal  division  of  the 
people  into  parties  is  a  providential  provision,  as  neces- 
sary to  the  perpetuation  of  liberty,  as  a  like  division  into 
sexes  is  necessary  for  the  perpetuation  of  the  species. 
As  a  matter  of  fact,  where  there  has  been  no  party 
strong  enough  to  maintain  a  conflict,  which,  if  it  were 
in  the  military  world,  would  be  entitled  to  recognition 
as  a  state  of  war,  paternalism  has  reigned.  It  was  the 
conflict  between  Protestantism  and  the  Church  of 
Rome,  and  between  the  various  divisions  of  the  Protes- 
tant Church  which  brought  out  the  principles  and  kin- 
dled the  fires  of  religious  liberty  in  these  later  centuries. 
And  during  this  period  the  flame  has  gone  out  where 
it  once  burned  brightly,  when  one  party  became  so  pre- 
dominant as  to  suppress  all  conflict.  The  Congrega- 
tionalists  of  Massachusetts  Bay  banished  dissenters, 
and  with  them  banished  religious  liberty  from  the  col- 
ony ;  and  liberty  returned  not  until  conflict  came 
again.  The  Puritans  of  all  New  England  and  of  Mary- 
land looked  to  the  absence  of  conflict  as  the  ideal  con- 
dition of  the  Commonwealth,  and  hesitated  not  to  use 
the  most  despotic  measures  to  bring  about  that  condi- 
tion. When  they  were  giv^en  toleration,  they  accepted 
it  as  a  piece  of  good  fortune  or  as  a  providential  favor 
to  the  truth  they  espoused,  not  as  a  right  belonging  to 
all  men.  When  in  power,  they  felt  bound  by  principle 
to  deny  the  boon  to  all  those  whom  they  regarded  as 
advocates  of  false  doctrine.  Nevertheless  the  forces  of 
progress,  working  constantly  against  all  resistance, 
made  steady  advancement,  till  now  in  this  country  the 
principle  of  toleration  is  universally  accepted. 

May  we  not  expect  this  righteous  evolution  to  con- 
tinue, until  toleration  shall  be  rejected  as  a  lingering 
vestige  of  spiritual  despotism,  and  the  era  of  true  re- 


88  Deductions  f7'0fn  the  History. 

ligious  liberty  shall  be  ushered  in,  by  the  removal  of 
all  religious  character  from  our  civil  institutions  ? 

We  shall  not  now  enter  upon  the  consideration  of  the 
merits  of  these  two  interpretations  of  the  facts  of  his- 
tory, but  shall  proceed  to  take  up  our  second  subject 
of  inquiry, — The  question  of  fact. 


PART  ir. 

A  question  of  fact,  ^\^lat  is  the  relation  of  the  Christian  re- 
ligion to  civil  government,  in  the  United  States,  at  the  pres- 
ent time  ? 


89 


CHAPTER  I. 

STATEMENT  OF  THE  QUESTION. 

In  entering  upon  the  inquiry,  What  is  the  relation 
of  the  Christian  religion  to  civil  government  in  these 
United  States?  let  us  bear  in  mind  that  it  is  simply- 
one  oi  fact,  and  not  of  theory  or  opinion  ; — what  is  ; 
not  what  ought  to  be.  The  caution  is  needed ;  for 
there  are  unmistakable  indications  in  some  quarters 
that  opinion  as  to  what  ought  to  be  has  established 
a  foregone  conclusion  as  to  what  is.  On  the  part  of 
many  it  is  assumed  that  in  this  country  there  is  an  en- 
tire separation  between  religion  and  civil  government ; 
or,  if  there  be  not  in  fact  such  a  separation,  the  connec- 
tion, whatever  it  may  be,  is  in  violation  of  the  funda- 
mental principles  of  our  institutions,  and  is  a  wrong  to 
a  number  of  our  fellow-citizens  which  a  proper  sense 
of  j  ustice  would  speedily  remove.  It  is  assumed  that 
the  underlying  principles  of  our  political  institutions 
require  that  they  should  be  entirely  destitute  of  re- 
ligious character, — that  they  should  be  no  more  Chris- 
tian than  they  are  Mohammedan  or  pagan.  We  speak 
of  this  as  an  assumption  for  the  reason  that  while  it  is 
often  uttered  as  an  opinion,  or  taken  for  granted  as  a 
truth,  there  is  seldom  any  attempt  made  to  sustain  it 

91 


92  Statetnent  of  the  Question. 


by  proof.  If  any  such  attempt  is  made,  it  is  usually 
but  little  more  than  the  assertion  that  the  whole  history 
and  genius  of  our  institutions  are  directly  against  the 
contrary  assumption.  The  history,  as  we  have  shown, 
and  shall  still  farther  show,  instead  of  furnishing  ground 
for  the  assumption  in  question,  furnishes  ground  for  the 
very  opposite.  As  to  the  genhis  of  our  institutions, 
it  may  properly  be  regarded  as  too  indefinable  a  thing 
to  be  made  the  basis  of  a  definite  proposition  ;  espe- 
cially, if  there  are  facts,  as  we  shall  vShow  that  there 
are,   which  have  a  bearing  in  the  opposite  direction. 


CHAPTER   II. 

THE  CONSTITUTION  OF  THE  UNITED  STATES. 

We  shall  begin  this  part  of  our  investigation,  with 
an  effort  to  ascertain  the  bearing  of  the  Constitution 
of  the  United  States  on  the  question. 

We  find  that  very  little  is  said  in  the  Constitution  on 
the  subject  of  religion,  and  that  what  little  is  said  is 
of  a  prohibitory  character.  There  is  in  the  body  of  it 
no  mention  of  the  name  of  the  Divine  Being  ;  nor  any 
recognition  of  His  existence,  not  even  in  the  form  of 
oath  prescribed  to  be  administered  to  the  President  at 
his  induction  into  office. 

It  may  be  said  that  this  negative  and  prohibitory 
character  of  the  Constitution  is  ground  for  a  very  strong 
presumption  as  to  the  intent  of  its  framers.  It  may  be 
said,  also,  that  this  presumption  is  supported  by  the 
fact  that  there  were  influential  members  of  the  Consti- 
tutional Convention,  who  might  1)e  supposed  to  be 
averse  to  giving  the  Constitution  the  slightest  religious 


The  Co7istitution.  93 

character.  It  is  to  be  remarked,  however,  that  the 
persons  referred  to  were  a  very  small  part  of  the  mem- 
bership of  the  convention.  It  is  to  be  remarked,  also, 
that  there  are  facts  which  indicate  that  even  they  would 
not  be  disposed  to  divest  the  civil  institutions  of  the 
land  of  all  religious  character.  It  was  Benjamin  Fran- 
klin who  introduced  the  resolution  proposing  that  the 
sessions  of  the  convention  be  opened  with  prayer.  In 
making  the  motion  he  said,  ' '  The  longer  I  live,  the 
more  convincing  proofs  I  see  of  this  truth,  that  God 
governs  the  affairs  of  men."  Surely  if  Franklin  was 
not  averse  to  opening  with  prayer  the  bod}-  that  framed 
the  Constitution,  he  would  not  be  averse  to  a  provision 
for  opening,  with  praj^er,  the  legislative  bodies,  acting 
under  the  Constitution.  Thomas  Jefferson,  whose  in- 
fluence ma}-  have  been  felt  in  the  convention,  said,  in 
his  first  message  as  president,  "  Can  the  liberties  of  a 
nation  be  thought  secure  when  w^e  have  removed  their 
only  firm  basis,  a  conviction  in  the  minds  of  the  people 
that  their  liberties  are  the  gift  of  God."  Surely,  when 
he  was  not  averse  to  reminding  the  people  officially  of 
this  fact,  he  would  not  be  averse  to  a  recognition  of  the 
fact  in  the  system  of  institutions  under  which  he  held 
his  office." 

'  In  a  letter  to  Dr.  Joseph  Priestley,  dated  at  Washington, 
June  19,  1802,  Mr.  Jefferson  writes  :  "One  passage  in  the 
paper  you  enclosed  me,  must  be  corrected.  It  is  the  following, 
'And  all  say  it  was  yourself  more  than  any  other  indi%-idual 
that  planned  and  established  it,'  i.  e.  the  Constitution.  I  was 
in  Europe  when  the  Constitution  was  planned,  and  never 
saw  it  until  after  it  was  established.  On  recei\-ing  it,  1  wrote 
strongly  to  Mr.  Madison,  urging  the  want  of  provision  for  the 
freedom  of  religion,  freedom  of  the  press,  trial  hj' jury,  habeas 
corpus,  the  substitution  of  militia  for  a  standing  army,  and  an 
express  reservation  to  the  States  of  all  rights  not  specifically 


94  The  Constitution. 

Now  turning  to  the  Constitution  itself,  we  find  the 
following  provisions  : 

Article  VI.  "  No  religious  test  shall  ever  be  re- 
quired as  a  qualification  to  any  office  or  public  trust 
under  the  United  States. ' ' 

Amendment  I.,  Article  the  First.  "  Congress  shall 
make  no  law  respecting  an  establishment  of  religion, 
or  prohibiting  the  free  exercise  thereof. ' ' 

If  it  be  admitted  that  these  two  Articles  are  a  suffi- 
cient ground  for  the  assumption  in  question,  yet  it  is 
to  be  remembered  that  they  are  expressly  made  to 
apply  to  the  general  government  alone.  They  do  not 
apply  to  the  States.  It  may  have  been  the  intent  in  fram- 
ing the  Constitution  to  assign  the  matter  of  religion  to 
the  domain  of  the  States,  rather  than  to  accomplish  an 
elimination  of  all  religious  character  from  our  civil  in- 
stitutions. It  may  be  said  that  this  conjecture  needs 
proof  before  it  can  be  accepted  as  true.  Of  that  we 
are  well  aware,  and  we  shall  now  proceed  to  give  the 
proof. 

In  Article  i,  Section  lo,  of  the  Constitution,  the 
States  are  prohibited  doing  certain  specified  things, 
and  the  establishment  of  religion  is  not  one  of  those 
things.  According,  therefore,  to  the  accepted  max- 
im of  interpretation,  Designatio  nniiis  est  exdusio  al- 
terhis  ;  et  expressiun  facit  cessare  taciturn,  the  subject 
of  religion  is  left  to  the  jurisdiction  of  the  States.  But 
the  Constitution  expressly  declares  (Amendment  i, 
Article  the  Ninth)  that  ' '  The  enumeration  in  the  Con- 
stitution of  certain  rights  shall   not  be  construed   to 

granted  to  the  Union.  He  accordingly  moved  in  the  first  Con- 
gress for  these  amendments,  which  were  agreed  to  and  ratified 
by  the  States  as  they  now  stand.  This  is  all  the  hand  I  had — 
related  to  the  Constitution."      Works,  vol.  iv.,  pp.  440,  441. 


The  Constitution.  95 

deny,  or  disparage  others,  retained  by  the  people." 
And  Article  the  Tenth  saj-s  that  "  The  powers,  not 
delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States, 
respectively,  or  to  the  people.'' 

By  a  fair  interpretation  of  the  Constitution,  the  right 
to  recognize  Christianity-,  and  even  to  make  a  law  re- 
specting an  establishment  of  religion,  is  to  be  held  as 
one  of  the  rights  reser\-ed  to  the  States.  We  would  not 
presume  to  oflfer  our  mere  interpretation  of  the  Consti- 
tution, as  conclusive  on  the  question,  but  we  have  to 
say — 

I  St.  That  our  interpretation  is  sustained  by  high  au- 
thority. Judge  Stor\-,  in  his  Commentary  on  the  Con- 
stitution of  the  United  States,  pp.  702,  703,  says,  "  Thus, 
the  whole  power  over  the  subject  of  religion  was  left 
exclusively  to  the  State  governments,  to  be  acted  on 
according  to  their  own  sense  of  justice,  and  the  Stale 
Constitutions. ' ' 

2d.  The  Circuit  Court  of  the  United  States,  W.  D., 
Tennessee,  In  re  King,  August  i,  1S91,  decided  that 
' '  The  fourteenth  amendment  of  the  Constitution  of  the 
United  States  has  not  abrogated  the  Sunday  laws  of  the 
States,  and  estabhshed  religious  freedom  therein.  The 
States  may  establish  a  Church  or  Creed,  and  maintain 
them,  so  far  as  the  Federal  Constitution  is  concerned. ' ' 
The  Court  said,  "  As  a  matter  of  fact  they  (the  founders 
of  our  government)  left  the  States  the  most  absolute 
power  on  the  subject,  and  anj'  of  them  might,  if  they 
chose,  establish  a  creed  and  a  church  and  maintain 
them."  > 

3d.  This  interpretation  of  the  Constitution  is  made 
conclusive  by  the  fact  that  nearl}*  all  of  the  original 
'  The  Federal  Reporter,  vol.  46,  p.  912. 


96  The  States. 

States  either  by  express  provision,  by  the  disqualifica- 
tions for  office  specified,  or  by  the  oaths  of  office  pre- 
scribed in  their  Constitutions,  have  at  some  time  in  their 
history  established  either  Protestantism  or  Christianity 
as  the  religion  of  the  State  ;  while  one  of  them  established 
a  particular  Protestant  denomination  as  the  Church  of 
the  State — all  maintaining  these  several  relations  of 
religion  to  the  State,  unchallenged  under  the  Constitu- 
tion of  the  United  States. 


CHAPTER  III. 

THE  STATES. 

I.  Connecticut. — The  Constitution  of  1818,  Article 
VII.,  entitled  Of  Religion,  is  as  follows,  viz.  : 

Section  i.  "It  being  the  duty  of  all  men  to  worship 
the  Supreme  Being,  the  great  Creator  and  Preserver  of 
the  Universe,  and  their  right  to  render  that  worship  in 
the  mode  most  consistent  with  the  dictates  of  their 
consciences ;  no  person  shall,  by  law,  be  compelled  to 
join  or  support,  or  be  classed  with  or  associated  with 
any  congregation,  church,  or  religious  association  ;  but 
every  person  now  belonging  to  such  congregation, 
church,  or  religious  association  shall  remain  a  member 
thereof  until  he  shall  have  separated  himself  therefrom 
in  the  manner  hereinafter  provided.  And  each  and 
every  society  or  denomination  of  Christians  in  this 
State  shall  have  and  enjoy  the  same  and  equal  powers, 
rights,  and  privileges  ;  and  shall  have  power  and  au- 
thority to  maintain  the  ministers  or  teachers  of  their 
respective  denominations,  and  to  build  and  repair 
houses  of  public  worship,  by  a  tax  on  the  members 


Connecticut.  97 


of  auy  such  society  only,  to  be  laid  by  a  major  vote  of 
the  legal  voters  assembled  at  any  society  meeting, 
warned  and  held  according  to  law,  or  in  any  other 
manner. ' ' 

Section  2.  ' '  If  any  person  shall  choose  to  separate  him- 
self from  the  society  or  denomination  of  Christians  to 
which  he  may  belong,  and  shall  leave  a  written  notice 
thereof  with  the  clerk  of  such  society,  he  shall  there- 
upon be  no  longer  liable  for  any  future  expenses  which 
may  be  incurred  by  said  society." 

The  following  continued  in  force  in  Connecticut  after 
the  adoption  of  the  Constitution  of  the  United  States  : 

"Be  it  enacted  by  the  Governor,  Council,  and  Rep- 
resentatives, in  General  Court  assembled,  and  by  the 
authority  of  the  same,  that  all  and  every  person  and 
persons  in  this  State  shall,  and  they  are  hereby  re- 
quired, on  the  Lord's  da}-  carefully  to  apply  themselves 
to  the  duties  of  religion  and  piety,  publicly  and  pri- 
vately. And  whatsoever  person  shall  not  duly  attend 
the  public  worship  of  God  on  the  Lord's  day  in  some 
congregation  allowed  by  law,  provided  there  be  any 
which  he  can  conscientiously  and  conveniently  attend, 
unless  hindered  b)^  sickness,  or  otherwise  necessarily 
prevented,  shall  for  every  such  offence  pay  a  fine  of 
three  shillings."  ' 

A  statute  of  1791  imposed  a  fine,  not  exceeding 
twelve  shillings  nor  less  than  six  shillings,  for  not  ab- 
staining from  any  kind  of  servile  labor  and  recreation, 
works  of  necessity  and  mercy  excepted,  on  Fast  and 
Thanksgiving  days. 

2.  Vermont. — Constitution  of  1777,  Chapter  I. 
Section  j.  "  Nor  can  any  man  who  professes  the 
Protestant  religion  be  justly  deprived  or  abridged  of 
'  Revised  aud  approved,  Jau.  8,  1784. 


98  The  States. 

any  civil  right  as  a  citizen,  on  account  of  his  reli- 
gious sentiment  or  peculiar  mode  of  religious  worship. 
.  .  .  Nevertheless,  every  sect  or  denomination  ought 
to  observe  the  Sabbath  or  the  Lord's  day,  and  keep  up 
and  support  some  sort  of  religious  worship  which  to 
them  shall  seem  most  agreeable  to  the  revealed  will 
of  God." 

Chapter  II.  Section  g.  ' '  And  each  member  (of  the 
House  of  Representatives)  before  he  takes  his  seat, 
shall  make  and  subscribe  to  the  following  declaration, 
viz.  :  '  I  do  believe  in  one  God,  the  creator  and  gov- 
ernor of  the  universe,  the  rewarder  of  the  good  and  the 
punisher  of  the  wicked  ;  and  I  do  acknowledge  the 
Scriptures  of  the  Old  and  New  Testaments  to  be  given 
by  divine  inspiration  ;  and  own  and  profess  the  Prot- 
estant religion.'  And  no  further  or  other  religious  test 
shall  ever  hereafter  be  required  of  any  civil  officer  or 
magistrate  of  this  State."  This  requirement  contin- 
ued in  force  until  the  adoption  of  the  Constitution 
of  1793. 

3.  New  Hampshire. — Constitution  of  1784.  Bill 
of  Rights.  Article  VI.  "  As  morality  and  piety, 
rightly  grounded  on  evangelical  principles,  will  give 
the  best  and  greatest  security  to  government,  and  will 
lay  in  the  hearts  of  men  the  strongest  obligation  to 
due  subjection,  and  as  the  knowledge  of  these  is  most 
likely  to  be  propagated  through  a  society  by  the  insti- 
tution of  the  public  worship  of  the  Deitj",  and  of  public 
instruction  in  morality  and  religion  ;  therefore,  to  pro- 
mote these  important  purposes,  the  people  of  this  State 
have  a  right  to  impower,  and  hereby  do  fully  impower, 
the  Legislature  to  authorize  from  time  to  time  the 
several  towns,  parishes,  bodies  politic,  or  religious 
societies  within  this  State,  to  make  adequate  provision, 


New  yersey.     Pennsylvania.  99 

at  their  own  expense,  for  the  support  and  mainten- 
ance of  public  Protestant  teachers  of  piety,  religion, 
and  morality." 

Part  II.  Section  //.  "  Ever}-  member  of  the  House 
of  Representatives  .  .  .  shall  be  of  the  Protestant 
religion." 

Section  2g.  "  Provided,  nevertheless,  that  no  person 
shall  be  capable  of  being  elected  a  Senator  who  is  not 
of  the  Protestant  religion.     .     .     .  " 

Sectio7i  ^2.  "  And  no  person  shall  be  eligible  to  this 
office  .  .  .  unless  he  shall  be  of  the  Protestant 
religion." 

These  provisions  continued  in  force  until  1877. 

4.  New  Jersey. — Constitution  of  1776.  Article 
XIX.  "...  And  that  no  Protestant  inhabitant 
of  this  colony  shall  be  denied  the  enjoyment  of  any 
civil  right  merely  on  account  of  his  religious  princi- 
ples, but  that  all  persons  professing  a  belief  in  the  faith 
of  anj'  Protestant  sect  who  shall  demean  himself  peace- 
ably under  the  government,  as  hereby  established,  shall 
be  capable  of  being  elected  to  any  office  of  profit  or 
trust,  or  of  being  a  member  of  either  branch  of  the 
L,egislature.     .     .     ." 

This  article  continued  in  force  until  1844. 

5.  Pennsylvania. — Constitution  of  1776.  Bill  of 
Rights.  Article  II.  "  .  .  .  Nor  can  any  man 
who  acknowledges  the  being  of  a  God  be  justly  de- 
prived, or  abridged,  of  any  civil  right  as  a  citizen  on 
account  of  his  religious  sentiments  or  peculiar  mode 
of  religious  worship." 

Frame  of  Government.  Section  10.  "And  each  mem- 
ber (of  the  House  of  Representatives)  before  he  takes 
his  seat  shall  make  and  subscribe  the  following  declara- 
tion, viz.  : 


100  The  States. 

"  I  do  believe  in  one  God,  the  creator  and  governor 
of  the  universe,  the  rewarder  of  the  good,  and  the  pun- 
isher  of  the  wicked.  And  I  do  acknowledge  the  Scrip- 
tures of  the  Old  and  New  Testament  to  be  given  by- 
Divine  inspiration. 

' '  And  no  further,  or  other,  religious  tests  shall  ever 
hereafter  be  required  of  any  civil  officer  or  magistrate 
in  this  State." 

This  test  remained  in  force  until  the  adoption  of  the 
Constitution  in  1790. 

Constitution  of  1790.  Article  IX.  Section  4.  "That 
no  person  who  acknowledges  the  being  of  a  God  and  a 
future  state  of  rewards  and  punishments,  shall  on  ac- 
count of  his  religious  sentiments  be  disqualified  to  hold 
any  office  or  place  of  trust  or  profit  under  this  Com- 
monwealth." 

This  article  was  incorporated  in  the  Constitution  of 
1838,  as  Article  IX.,  Sec.  4;  and  in  the  Constitution 
of  1873  as  Article  I.,  Sec.  4. 

6.  Delaware.— Constitution  of  1776.  Article  XXII. 
' '  Every  person  who  shall  be  chosen  a  member  of  either 
House,  or  appointed  to  any  office  or  place  of  trust, 
before  taking  his  seat  or  entering  upon  the  execution 
of  his  office,  shall  take  the  following  oath  or  affirma- 
tion, if  conscientiously  scrupulous  of  taking  an  oath, 
to  wit : 

"  '  I,  A.  B.,  do  profess  faith  in  God  the  Father,  and 
in  Jesus  Christ  his  only  Son,  and  in  the  Holy  Ghost, 
one  God,  blessed  forevermore ;  and  I  do  acknowledge 
the  Holy  Scriptures  of  the  Old  and  New  Testaments  to 
be  given  by  Divine  inspiration.'  " 

This  Article  was  part  of  the  organic  law  of  the  State 
until  1792. 

7.  Maryland. — Constitution   of  1776.     Declaration 


NorlJi  Carolina.      South  Carolina.       loi 

of  Rights.  Article  XXXIII.  "That  it  is  the  duty 
of  every  man  to  worship  God  in  such  manner  as  he 
thinks  most  acceptable  to  him  ;  all  persons  professing 
the  Christian  religion  are  equally  entitled  to  protection 
in  their  religious  liberty  ;  .  .  .  yet  the  I,egislature 
may,  in  their  discretion,  lay  a  general  and  equal  tax 
for  the  support  of  the  Christian  religion,  leaving  to 
each  individual  the  power  of  appointing  the  payment 
over  the  money,  collected  from  him,  to  the  support  of 
an)'  particular  place  of  worship  or  minister,  or  for  the 
benefit  of  the  poor  of  his  own  denomination,  or  the 
poor  in  general,  of  an^^  particular  county." 

This  power  given  to  the  Legislature  was  revoked  by 
an  amendment  which  was  adopted  in  1810. 

8,  North  Carolina.  Constitution  of  1776.  Article 
XXXII.  "  That  no  person  who  shall  deny  the  being 
of  God,  or  the  truth  of  the  Protestant  religion,  or  the 
divine  authority  either  of  the  Old  or  New  Testaments, 
or  shall  hold  religious  principles  incompatible  with  the 
freedom  and  safety  of  the  State,  shall  be  capable  of 
holding  any  office,  or  place  of  trust  or  profit,  in  the 
civil  department  within  this  State. 

This  Article  was  amended  in  1835  by  the  substitu- 
tion of  the  words  ' '  Christian  religion ' '  for  the  word 
"Protestant  religion." 

Constitution  of  1876.  Article  VI.  Section 5.  "The 
following  persons  shall  be  disqualified  for  office  :  First, 
all  persons  who  shall  deny  the  being  of  Almighty 
God.     .     .     ." 

9.  South  Carolina.  Constitution  of  1778.  Article 
XXXVIII.  "  .  .  .  The  Chri.stian  Protestant  re- 
ligion shall  be  deemed,  and  is  hereby  constituted  and 
declared  to  be,  the  established  religion  of  this  State. 
That  all  denominations  of  Christian  Protestants  in  this 


I  02  The  States. 

State,  demeaning  themselves  peaceably  and  faithfully, 
shallenjoy  equal  religious  and  civil  privileges  .  .  .  ; 
and  that  when  fifteen  or  more  male  persons,  not  un- 
der twenty-one  years  of  age,  professing  the  Christian 
Protestant  religion,  and  agreeing  to  unite  themselves 
in  a  society  for  religious  worship,  they  shall  (on  com- 
plying with  the  terms  hereinafter  mentioned)  be,  and 
be  constituted  a  church  ;  and  be  esteemed  and  regarded, 
in  law,  as  of  the  established  religion  of  the  State  ;  and 
on  a  petition  to  the  lyCgislature  shall  be  entitled  to  be 
incorporated,  and  to  enjoy  equal  privileges.  .  . 
But  that  previous  to  the  establishment  and  incorpora- 
tion of  the  respective  societies  of  every  denomination, 
as  aforesaid,  and  in  order  to  entitle  them  thereto, 
every  society  so  petitioning  shall  have  agreed  to 
and  subscribed  in  a  book,  the  following  five  articles, 
without  which  no  agreement  or  union  of  men,  upon 
pretence  of  religion,  shall  entitle  them  to  be  incorpo- 
rated and  esteemed  as  a  church  of  the  established  reli- 
gion of  this  State  :  ist.  That  there  is  one  eternal 
God,  and  a  future  state  of  rewards  and  punishments. 
2d.  That  God  is  publicly  to  be  worshipped.  3d. 
That  the  Christian  religion  is  the  true  religion.  4th. 
That  the  Holy  Scriptures  of  the  Old  and  New  Testa- 
ments are  of  divine  inspiration,  and  are  the  rule  of  faith 
and  practice.  5th.  That  it  is  lawful,  and  the  dut}'  of 
every  man,  being  thereunto  called  by  those  that  govern, 
to  bear  witness  to  the  truth.  And  that  every  inhabi- 
tant of  this  State  when  called  upon  to  make  appeal  to 
God  as  a  witness  to  truth  shall  be  permitted  to  do  it,  in 
that  way  which  is  most  agreeable  to  the  dictates  of  his 
own  conscience.  And  that  the  people  of  this  State 
may  forever  enjoy  the  right  of  electing  their  own  pas- 
tors or  clergy,  and  that  at  the  same  time  the  State  may 


South  Carolina.  103 


have  sufficient  security  for  the  discharge  of  the  pastoral 
office  by  those  who  shall  be  admitted  to  be  clergymen, 
no  person  shall  officiate  as  minister  of  any  established 
church  who  shall  not  have  been  chosen  by  a  majority 
of  the  society  to  which  he  shall  minister,  or  b}'  persons 
appointed  by  the  said  majority  to  choose  and  procure  a 
minister  for  them  ;  nor,  until  the  minister  so  chosen 
and  appointed  shall  have  made  and  subscribed  to  the 
following  declaration,  over  and  above  the  aforesaid  five 
articles,  viz.  :  '  That  he  is  determined  by  God's  grace, 
out  of  the  Holy  Scriptures,  to  instruct  the  people  com- 
mitted to  his  charge,  and  to  teach  nothing,  as  required 
of  necessity  to  salvation,  but  that  which  he  shall  be 
persuaded  maj''  be  concluded  and  proved  from  the 
Scripture  ;  that  he  will  use  both  public  and  private  ad- 
monitions, as  well  to  the  sick  as  to  the  whole  within 
his  cure,  as  need  shall  require  and  occasion  shall  be 
given  ;  and  that  he  will  be  diligent  in  prayers,  and  in 
reading  of  the  Holy  Scriptures,  and  in  such  studies  as 
help  to  the  knowledge  of  the  same  ;  that  he  will  be 
diligent  to  frame  and  fashion  his  own  self  and  his  family 
according  to  the  doctrine  of  Christ,  and  to  make  both 
himself  and  them,  as  much  as  in  him  lieth,  wholesome 
examples  and  patterns  to  the  flock  of  Christ ;  that  he 
will  maintain  and  set  forward,  as  much  as  he  can, 
quietness,  peace,  and  love  among  all  people,  and  espe- 
cially among  those  that  are  or  shall  be  committed  to  his 
charge.     .     .     ." 

It  was  provided  in  this  Constitution  that  no  person 
should  be  eligible  to  the  office  of  Governor  and  I^ieu- 
tenant  Governor,  membership  in  the  Privy  Council,  in 
the  Senate,  and  House  of  Representatives,  who  was  not 
of  the  Protestant  religion  ;  also  that  no  person  should 
be  an  elector  who  does  not  acknowledge  the  being:  of  a 


I04  The  States. 

God,  and  believe  in  a  future  state  of  rewards  and  pun- 
ishments. 

This  Constitution  continued  to  be  the  fundamental 
law  of  the  State  until  June  3,  1790,  two  years  after 
the  Constitution  of  the  United  States  had  become  the 
supreme  law  of  the  land,  and  two  years  after  the  State 
had  ratified  that  Constitution. 

10.  Massachusetts. — Constitution  of  1780.  Part 
First.  Declaration  of  Rights.  Article  III.  "  As  the 
happiness  of  a  people,  and  the  good  order  and  preser- 
vation of  civil  government,  essentially  depend  upon 
piety,  religion,  and  morality  ;  and  as  these  cannot  be 
generally  diffused  through  a  community  but  by  the  in- 
stitution of  the  public  worship  of  God,  and  of  public 
instructions  in  piety,  religion,  and  morality  ;  Therefore, 
to  promote  their  happiness,  and  to  secure  the  good  or- 
der and  preser\^ation  of  their  government,  the  people 
of  this  Commonwealth  have  a  right  to  invest  their  legis- 
lature with  power  to  authorize  and  require,  and  the 
legislature  shall  from  time  to  time  authorize  and  require, 
the  several  towns,  parishes,  precincts,  and  other  bodies- 
politic  or  religious  societies,  to  make  suitable  provision 
at  their  own  expense  for  the  institution  of  the  public 
worship  of  God,  and  for  the  support  and  maintenance 
of  public  Protestant  teachers  of  piety,  religion  and 
morality,  in  all  cases  in  which  such  provision  shall  not 
be  made  voluntarily. 

' '  And  the  people  of  this  Commonwealth  have  also  a 
right  to,  and  do,  invest  their  legislature  with  authority 
to  enjoin  upon  all  the  subjects  an  attendance  upon  the 
institutions  of  the  public  teachers  aforesaid,  at  stated 
times  and  seasons,  if  there  be  any  on  whose  instructions 
they  can  conscientiously  and  conveniently  attend.  Pro- 
vided 7iotu'Ifhsta7idi77g,  that  the  several  towns,  parishes, 


Massach  usetts.  i  o : 


precincts,  and  other  bodies-politic,  or  religious  societies 
shall  at  all  times  have  the  exclusive  right  of  electing 
their  public  teachers,  and  of  contracting  with  them  for 
their  support  and  maintenance. 

"  And  all  moneys,  paid  by  the  subject  to  the  support 
of  public  worship  and  of  the  public  teachers  aforesaid, 
shall,  if  he  require  it,  be  uniformly  applied  to  the  sup- 
port of  the  public  teacher  or  teachers  of  his  own  reli- 
gious sect  or  denomination,  provided  there  be  any  on 
whose  instructions  he  attends  ;  otherwise  it  may  be  paid 
toward  the  support  of  the  teacher  or  teachers  of  the  par- 
ish or  precinct  in  which  the  said  moneys  are  raised. 
And  every  denomination  of  Christians,  demeaning 
themselves  peaceably,  and  as  good  subjects  of  the  Com- 
monwealth, shall  be  equally  under  the  protection  of  the 
law  ;  and  no  subordination  of  any  one  sect  or  denomi- 
nation to  another  shall  ever  be  established  by  law. ' ' 

Chapter  VI.  Article  I.  "Any  person,  chosen  gov- 
ernor, lieutenant-governor,  councillor,  senator,  or  rep- 
resentative, and  accepting  the  trust,  shall  before  he 
proceed  to  execute  the  duties  of  his  place  or  office, 
make  and  subscribe  the  following  declaration,  viz.  : 

"  'I,  A.  B.,  do  declare  that  I  believe  the  Christian 
religion,  and  have  a  firm  persuasion  of  its  truth,'  "  etc. 

The  former  article  remained  in  force  until  1833  ;  the 
latter  until  1822. 

Under  this  Constitution,  the  lyCgislature  adopted  the 
following  statute,  March  4,  1800,  viz.  : 

Sectio7i  2.  '''Be  it  further  enacted,  that  every  corpo- 
rate town,  parish,  precinct,  district,  or  other  body-politic, 
or  religious  society,  aforesaid,  is  hereby  required  to  be 
constantly  provided  with  a  public  Protestant  teacher 
of  piety,  religion  and  morality  ;  and  in  default  of 
being  so  provided  and  supplied  for  the  term  of  three 


io6  The  States. 

months  in  every  six  months,  such  town,  parish,  pre- 
cinct, district,  and  other  body-politic,  or  religious  soci- 
ety, which  shall  in  the  judgment  of  the  court  of  general 
sessions  of  the  peace  for  the  same  county,  be  adjudged 
of  sufficient  ability  to  be  so  provided,  shall  pay  a  fine, 
for  a  first  offence,  of  a  sum  not  exceeding  sixty  dollars, 
nor  less  than  thirty  ;  and  for  each  and  every  like  offence 
after  the  first  a  fine  not  exceeding  one  hundred  dollars, 
nor  less  than  sixty  dollars,  together  with  costs  of  prose- 
cution ;  such  fine  to  be  recovered  by  indictment  in  the 
court  of  general  sessions  of  the  peace  in  the  county 
where  such  delinquency  may  happen,  and  levied  on  the 
inhabitants  comprising  such  town,  parish,  precinct,  dis- 
trict, and  other  body-politic  and  religious  society,  so  de- 
linquent, in  the  same  manner  as  other  fines  are  levied 
on  the  inhabitants  of  towns. 

Section;^.  '' Be  it  further  e^iaded,  .  .  .  And  in 
order  that  all  the  citizens  of  this  Commonwealth  may, 
according  to  the  wise  and  reasonable  provision  of  the 
constitution,  be  alike  required  to  contribute  to  the 
support  of  their  public  teachers  aforesaid. 

Section  4..  ""Be  it  further  enacted,  that  every  town, 
parish,  precinct,  district  and  other  bod3^-politic  and  reli- 
gious society,  aforesaid,  is  hereby  authorized  to  cause  all 
sums  of  money,  by  them  respectively  voted  to  be  raised 
from  time  to  time  in  any  legal  meeting  duly  assembled 
or  holden  for  the  settlement  or  support  of  any  public 
teacher  or  teachers  aforesaid,  or  the  building  or  repair 
of  any  house  or  houses  of  public  worship,  to  be  assessed 
upon  all  the  ratable  polls  of  each  particular  corporation 
or  religious  society  aforesaid  (the  polls  and  estates  of 
Quakers  excepted)  in  the  same  proportion  as  state  and 
town  taxes  are  by  law  assessed.  .  .  .  Provided,  how- 
ever, that  when  any  person  taxed  in  any  such  tax  or 


Massachuseth.  107 


assessment  voted  to  be  raised  as  aforesaid,  being,  at 
the  time  of  voting  or  raising  any  such  tax  or  assess- 
ment, of  a  different  sect  or  denomination  from  that  of 
the  corporation,  body-poHtic  or  religious  society,  by 
which  said  tax  was  so  assessed,  shall  request  that  the 
tax  set  against  him  or  her  in  the  assessment  made  for 
the  purpose  aforesaid  ma)^  be  applied  to  the  support  of 
the  public  teacher  of  his  own  religious  sect  or  denomi- 
nation ;  such  person  procuring  a  certificate,  signed  by 
the  public  teacher  on  whose  instruction  he  usually  at- 
tends, and  by  two  other  persons  of  the  society  of  which 
he  is  a  member  (having  been  especially  chosen  as  a 
committee  to  sign  such  a  certificate)  in  substance  as 
follows,  viz.:  'We,  the  subscribers,  A.  B.,  public 
teacher  of  a  society  for  the  religious  sect  or  denomina- 
tion called  in  the  town,  district,  precinct, 
or  parish  of  and  C,  D,  B,  F,  committee  of 
said  society,  do  hereby  certify  that  doth 
belong  to  said  society  ;  and  that  he  (or  she  as  the  case 
maybe)  frequently  and  usually,  when  able,  attends  with 
us  in  our  stated  meeting  for  religious  worship. '  Which 
certificate  having  been  produced  to  the  selectmen,  com- 
mittee or  assessors,  (as  the  case  may  require)  of  the 
town,  district,  parish,  precinct,  or  other  body-politic  or 
religious  societ}^,  by  whom  he  or  she  has  been  taxed, 
as  aforesaid,  it  shall  be  sufficient  to  require  them,  re- 
spectively, to  order  and  direct  the  treasurer  of  such  cor- 
poration or  religious  society  to  paj'  over  the  amount  of 
such  taxes,  so  applied  for,  to  the  use  of  the  public 
teacher  of  the  religious  sect  or  denomination  to  which 
such  applicant  belongs  ;  and  such  public  teacher  shall 
thereby  be  entitled  to  receive  the  same/  It  required  in 
one  instance  fourteen  suits  at  law  before  a  town  treas- 
'  Buck's  Ecclesiastical  Law  of  Massachuetts,  pp.  253-255. 


io8  The  States. 

urer  yielded  the  taxes,  and  in  another  an  expense  of 
one  hundred  dollars  and  four  years'  time  to  get  four 
dollars  out  of  his  hands  for  the  use  of  a  Baptist  min- 
ister. ' 

In  1832  Nathaniel  P.  Fisher  of  Walpole  was  arrested 
for  refusing  to  pay  the  tax  of  $2.38  levied  on  him  at 
the  town  meeting  for  the  support  of  the  gospel. 

Towns  and  Parishes — the  latter  being  territorial  sub- 
divisions of  the  Town,  as  the  Towns  were  of  the  County 
— were  the  only  religious  organizations  known  to  the 
law  ;  they  embraced  all  the  inhabitants  within  their 
boundaries,  and  were  obliged  to  maintain  and  support 
public  religious  worship.  The  Supreme  Court  of  Mas- 
sachusetts has  made  the  following  decisions  : 

"  But  when  no  part  of  a  town  is  included  in  or 
constitutes  a  parish,  the  duties  of  a  parish  are  re- 
quired of  the  town,  which  is  obliged  to  maintain  and 
support  public  religious  worship,  and  perform  all  par- 
ish duties."  * 

' '  Every  town  is  considered  to  be  a  parish  until 
a  separate  parish  is  formed  within  it,  and  then  the  in- 
habitants and  territory  not  included  in  this  separate 
parish  constitute  the  first  parish,  in  pursuance  of  the 
statute  of  1786,  C.  X.,  S.  4."  ' 

"  A  town  may,  by  its  town  ofiicers,  assess  a  tax  for 
parochial  purposes  upon  the  members  of  the  first  par- 
ish, though  there  be  a  second  parish  in  the  town."  " 

"Liability  to  taxation  is  the  criterion  of  member- 
ship (in  a  parish)  so  far  as  relates  to  voting,  and  who- 
ever is  a  member  of  a  parish  has  a  right  to  vote  ;  and 

'  Buck's  Ecclesiastical  Law  of  Massachusetts,  p  43. 
^  Dillingham  v.  Suow,  5  Massachusetts,  554,  1809  ;  and  Coch- 
ran V.  Camden,  15  Massachusetts,  302  ;  1818. 
2  Brunswick  v.  Dunning,  7  Mass.,  445  ;  181 1. 
■•  Ashley  v.  Wellington,  8  Pick...  524  ;  1829. 


Massachusetts.  109 


the  officer  who  refuses  the  vote  of  a  member  is  liable 
to  an  action."  ' 

Ministers,  ' '  by  the  constitution  and  laws  of  the 
commonwealth,  are  to  receive  their  maintenance  from 
the  parish  and  not  from  the  church."  '^ 

"  This  body  (the  church)  has  no  power  to  contract 
with  or  settle  a  minister  ;  that  power  residing  wholly 
in  the  parish,  of  which  the  members  of  the  church, 
who  are  inhabitants,  are  a  part.  The  church  nominates 
the  minister.  A  contract  of  settlement  is  made  wholly 
between  the  parish  and  the  minister,  and  is  obligatory 
only  on  them."  " 

"A  Congregational  Church,  connected  with  a  par- 
ish, is  not  a  corporation,  nor  a  <7««.«-corporation,  for 
the  pturpose  of  holding  property  ;  although,  like  a  cor- 
poration, in  respect  to  its  power  to  act  by  vote  and 
majorities."  ^ 

"  Nor  are  the  deacons  of  such  a  church  made  a  cor- 
poration by  the  statute  of  1785,  C.  51,  for  receiving  and 
managing  a  fund  for  the  support  of  a  minister. ' '  " 

Chief-Justice  Parsons  held  that,  whatever  the  usage 
in  settling  ministers,  the  Bill  of  Rights  of  1780  secures 
to  towns,  not  to  churches,  the  right  to  elect  the  minister 
in  the  last  resort.  ° 

Bvery  citizen  being   taxed  for   the   support   of  the 

'  Sparrow  v.  Wood,  i6  Mass.,  457;  1820.  Oakes  v.  Hill,  14 
Pick.,  442  ;  1833. 

-  Boutell  V.  Cowdiu,  9  Mass.,  253  ;  1812.  General  Statutes,  C. 
xxxi.  S.  I. 

^  Burr  V.  ist  Parish  in  Sandwich,  9  Mass.,  296  ;  1812. 

•*  Stebbins  z/.  Jennings,  10  Pick.,  172  ;  1830.  Parker  v.  May, 
5  Cush.,  345  ;  1850.  Weld  v.  May,  9  Cush.,  181  ;  1852.  Jefts  v. 
York,  10  Cush.,  392  ;  1852. 

^Boutell  V.  Cowdin,  9  Mass.,  254;  1812.  General  Statutes, 
C.  xxxi.,  S.  I. 

*  Avery  v.  Tyringham,  3  Mass.,  181. 


1 1  o  The  States. 

church  had  a  right  to  vote  in  the  administration  of 
the  affairs  of  the  church.  This  right  did  not  pro- 
duce any  serious  trouble  until  the  rise  of  the  Uni- 
tarian controversy  in  1820.  The  non-communicants  of 
the  town  or  parish  in  some  cases  united  with  a  Uni- 
tarian minority  in  the  church  and  elected  a  Unitarian 
pastor,  against  the  protest  of  the  Orthodox  majority  of 
the  communicants.  The  town  of  Dedham  in  1 8 1 8  chose 
Mr.  lyamson,  a  Unitarian,  as  pastor.  Two  thirds  of 
the  communicants,  being  opposed  to  him,  went  across 
the  street  to  worship  ;  and  holding  that  they  were  the 
church,  brought  suit  for  the  possession  of  the  property. 
The  case  went  to  the  Supreme  Court  of  the  State,  and 
the  court  decided,  Justice  Parker  giving  the  decision, 
that  the  Orthodox  majority  had  no  right  to  the  property, 
and  further  decided  that ' '  that  body  (the  church)  could 
not  take  fee  or  succession  because  it  was  not  a  body- 
politic,  and  could  neither  take  nor  hold  a  legal  interest 
in  land. ' '  '  Upon  this  decision  about  half  of  the  towns 
of  Eastern  Massachusetts  elected  Unitarian  pastors  ; 
thus,  in  effect,  ejecting  the  Orthodox  communicants 
from  their  church  property.  The  Orthodox  were  now 
willing  to  consent  to  the  separation  of  the  church,  as  a 
religious  organization,  from  the  town  and  parish,  as  civil 
organizations,  which  was  effected  in  the  amended  Bill 
of  Rights  of  1834.  The  Bill  of  Rights  was  so  amended 
as  to  simply  recognize  "the  public  worship  of  God 
and  instruction  in  piety,  as  promoting  the  happiness 
and  prosperity  of  a  people,  and  the  security  of  a  republi- 
can form  of  government. ' '  Up  to  this  time  it  was  the 
duty  of  the  Commonwealth,  not  only  to  recognize  the 
value  of  such  worship  and  instruction,  but  to  provide 
for  it  and  enforce  attendance  upon  it. 

'  Baker  et  al.  v.  Fales,  16  Mass.,  487  ;  1820. 


Massachtisdts.  1 1 1 


As  late  as  1835  a  fine  might  have  been  collected  in 
Massachusetts  from  any  able-bodied  citizen  who  ab- 
sented himself  from  preaching  for  three  months.' 

It  appears  to  be  conclusive,  therefore — 

I  St.  From  a  fair  interpretation  of  the  Constitution 
itself; 

2d.  From  the  opinions  of  jurists  ;  and 

3d.  From  the  fact  that  States  made  laws  respecting  an 
establishment  of  religion,  and  maintained  such  an  estab- 
lishment under  the  Constitution  unquestioned,  that  the 
authority  in  relation  to  religion,  which  was  prohibited 
by  the  Constitution  to  congress,  was  reserved  to  the 
States  ;  and  that  the  Constitution  of  the  United  States 
was  not  intended  to,  and  did  not,  effect  a  total  separa- 
tion between  the  religious  and  civil  institutions  of  the 
people. 

CHAPTER  IV. 

THE   ORDINANCE   OF    1 787. 

We  turn  now  to  the  Ordinance  of  1787  as  bearing 
upon  the  question  of  fact. 

On  the  ist  of  March,  1784,  Virginia  ceded  to  the 
United  States  the  territory  northwest  of  the  Ohio  River. 
The  cession  was  accepted,  and  on  the  13th  of  July,  1787, 
Congress  passed  an  ordinance  for  the  government  of 
that  territory.  Article  III.  of  that  ordinance  is  in  part : 
"Religion,  morality,  and  knowledge,  being  necessary 
to  good  government  and  the  happiness  of  mankind, 
schools  and  the  means  of  education  shall  forever  be 
encouraged."  The  ordinance  declares  itself  to  be  a 
compact,  and  was  adopted  by  the  United  States  as 
•  Buck's  Ecclesiastical  Law  of  Massachusetts^  p.  27. 


1 1 2  The  Ordinance  of  lySy. 

such.  Article  VI.  which  says  "  There  shall  be  neither 
slavery  nor  involuntary  servitude  in  the  said  territory, 
otherwise  than  in  punishment  of  crimes,  whereof 
the  party  shall  have  been  duly  convicted,"  has  been 
repeatedly  interpreted  as  a  compact.  Upon  a  motion 
to  repeal  it,  in  1803,  in  the  interests  of  the  slave- 
holding  States,  John  Randolph  reported  adversely  on 
the  ground  that  it  was  a  part  of  a  compact.  This 
ordinance  was  adopted  before  the  adoption  of  the  Con- 
stitution of  the  United  States,  but  it  was  re-affirmed 
after  the  adoption  of  the  Constitution,  on  May  7, 
1800,  in  providing  for  the  government  of  Indiana  terri- 
tory ;  on  February  3,  1809,  in  providing  for  the  govern- 
ment of  Illinois  territory  ;  on  April  18,  1818,  in  the  act 
enabling  the  people  of  Illinois  to  form  a  State  Constitu- 
tion. The  ordinance,  excepting  Article  VI.  prohibiting 
slavery,  was  re-adopted,  under  the  Constitution,  April 
24,  1802,  in  accepting  the  cession  of  territory  from 
Georgia.  In  the  act  of  March  2,  18 19,  authorizing  the 
people  of  Alabama  to  form  a  Constitution  and  State 
government,  it  was  required  that  the  Constitution 
should  not  be  "  repugnant  to  the  ordinance  of  the  13th 
of  July,  1787,  between  the  people  of  the  United  States 
and  the  people  of  the  territory  northwest  of  the  Ohio 
river." 

There  can  be  no  doubt  that  it  was  the  intention  of 
the  framers  of  the  ordinance  to  make  its  articles  per- 
petually binding.  On  this  question  the  ordinance  it- 
self is  conclusive,  the  14th  section  being  as  follows : 
"It  is  hereby  ordained  and  declared,  by  the  authority 
aforesaid,  that  the  following  articles  shall  be  con- 
sidered as  articles  of  compact  between  the  original 
States  and  the  people  and  States  in  said  territory,  and 
forever  remain  unalterable  unless  by  common  consent. ' ' 


The  Ordinance  of  lySy.  1 1 3 

In  two  of  the  articles  the  words  ' '  forever ' '  are  applied 
to  the  stipulations  therein  contained,  viz.:  Article  III., 
to  the  encouragement  of  schools  and  the  means  of 
education  for  the  promotion  of  religion,  morality  and 
knowledge;  Article  IV.,  to  the  prohibition  of  "tax, 
impost  or  duty  ' '  upon  the  use  of  ' '  the  navigable 
waters  leading  into  the  Mississippi  and  St.  Lawrence, 
and  the  carrying  places  between  the  same." 

For  a  long  time  it  was  the  prevailing  public  opinion 
that  the  articles  of  the  ordinance  were  perpetually 
binding  on  the  States  formed  out  of  the  Northwestern 
and  Southwestern  Territories,  but  the  courts  have  dif- 
fered in  opinion  on  the  subject.  It  has  been  held  by 
the  courts  that  when  Congress  by  act  extended  the 
provisions  of  the  ordinance  to  territory  outside  of  that 
described  in  the  ordinance,  those  provisions  were  not 
binding  on  the  States  formed  out  of  such  territor}-. 
This  view,  which  is  obviously  correct,  was  held  by  the 
Supreme  Court  of  the  United  States  in  Permoli  v.  the 
Municipality  of  New  Orleans,  3  How.,  589,  and  in  Wil- 
liamette  Iron  Bridge  Co.  v.  Hatch,  Oct.,  1887,  125, 
U.  S.,  I. 

It  has  been  held  by  the  courts  that  the  terms  of  the 
ordinance  were  perpetually  binding  on  the  States 
formed  out  of  the  territory  described  therein,  and  that 
when  the  State  Constitution  departed  in  any  particular 
from  the  terms  of  the  ordinance,  and  the  Constitution 
was  approved  by  Congress,  that  approval  completed 
the  assent  of  the  original  parties  to  the  alteration  thus 
made  in  the  terms  of  the  compact.  The  first  part  of 
Article  VI.  of  the  ordinance,  that  prohibiting  slavery, 
was  incorporated  in  the  State  Constitution  of  Ohio,  but 
the  last  part,  that  allowing  the  slave  escaping  into  the 
territory   from   any  of  the  original  States  to  be  "re- 


1 1 4  The  Ordinance  of  lySy. 

claimed  and  conveyed  to  the  person  claiming  his  or  her 
labor  or  service,"  was  omitted,  and  it  was  held  by  the 
Supreme  Court  of  the  United  States  in  Strader  et  al.  v. 
Graham,  Dec,  1850,  10  How.,  82,  that  the  act  of  Con- 
gress admitting  the  State  into  the  Union  with  that 
omission  in  her  Constitution  was  a  modification  of  the 
terms  of  the  compact,  in  accordance  with  the  provisions 
made  in  the  ordinance  for  the  purpose.  Three  slaves 
valued  at  $3000  had  escaped  by  the  steamer  Pike  from 
lyouisville,  Ky.,  to  Cincinnati,  O.,  and  thence  to  Can- 
ada, and  the  owners  of  them  brought  suit  against  the 
owners  and  the  master  of  the  steamer,  citizens  of  Ohio, 
to  recover  value.  The  plaintiffs  argued  that  their 
claim  was  made  good  by  the  provision  in  the  last  part 
of  Article  VI.  of  the  Ordinance  of  1787.  The  court  de- 
cided against  the  claim  on  the  ground  that  the  Consti- 
tution of  Ohio,  having  received  the  sanction  of  Congress, 
that  part  of  Article  VI.  stood  suspended  or  altered  by 
consent.  In  rendering  the  decision  the  Court  said  : 
' '  For  thirty  years  the  State  courts  within  the  territory 
ceded  by  Virginia  have  held  this  part  of  Article  IV. 
(relating  to  free  navigation  of  the  waters)  to  be  in  force 
and  binding  on  them  respectively,  and  I  feel  unwilling 
to  disturb  this  wholesome  decision  which  is  so  conserva- 
tive of  the  rights  of  others,  in  a  case  in  which  the  4tli 
Article  is  in  no  wise  involved,  and  when  our  opinion 
might  be  disregarded  by  the  State  courts  as  obiter  and 
a  dictum  uncalled  for. ' ' 

The  Legislature  of  Ohio  incorporated  the  Zanesville 
Canal  and  Manufacturing  Company,  authorizing  them 
to  make  a  dam  and  lock  in  the  Muskingum  River.  In 
a  freshet  the  lock  became  so  filled  with  driftwood  and 
sand  that  it  could  not  be  used.  Williams  and  Hogg 
had  loaded  a  boat  for  the  New  Orleans  market,  and 


The  Ordinance  of  lySy.  1 1 5 

being  unable  to  go  through  the  lock  employed  skilful 
pilots  to  take  the  boat  over  the  dam  ;  the  boat  became 
unmanageable  in  the  passage,  and  striking  against  a 
pier  below  the  dam  was  wrecked.  The  owners  brought 
suit  for  damages,  basing  their  claim  on  the  last  part  of 
Article  IV.  of  the  Ordinance  of  17S7,  which  is  as  fol- 
lows : 

' '  The  navigable  waters  leading  into  the  Mississippi 
and  St.  Lav/rence  and  the  carr3'ing  places  between 
them  shall  be  common  highwaj-s,  and  forever  free,  as 
well  to  the  inhabitants  of  the  said  Territory,  as  to  the 
citizens  of  the  United  States,  and  those  of  any  other 
States  that  may  be  admitted  into  the  confederacy,  with- 
out any  tax,  impost  or  dutj'  therefor." 

The  Supreme  Court  of  Ohio,  in  giving  its  decision 
in  the  case,  said  :  ' '  This  part  of  the  Ordinance  is  as 
much  obligator^'  upon  the  State  of  Ohio  as  our  own 
Constitution.  In  truth,  it  is  more,  for  the  Constitution 
ma}'  be  altered  by  the  people  of  the  State,  while  this 
cannot  be  altered  without  the  assent  both  of  the  people  of 
this  State  and  of  the  United  States,  through  their  rep- 
resentatives. It  is  an  article  of  compact,  and  until  we 
assume  the  principle  that  the  sovereign  power  of  the 
State  is  not  bound  by  compact,  this  clause  must  be  con- 
sidered obligatory.  .  .  .  Every  citizen  of  the  United 
States  has  a  perfect  right  to  its  (the  Muskingum  River) 
free  navigation  ;  a  right,  derived  not  from  the  lyCgisla- 
ture  of  Ohio,  but  from  a  superior  source.  With  this 
right  the  Legislature  cannot  interfere  ;  in  other  words, 
cannot  by  any  law  which  they  may  pass  impede  or  ob- 
struct the  navigation  of  the  river  ;  but  it  does  not  fol- 
low that  laws  may  not  be  enacted  to  improve  the  navi- 
gation of  these  rivers.  In  passing  laws  to  improve  the 
navigation,  care  must  be  taken  that  that  which  was 


1 1 6  The  Ordinance  of  lySy. 

intended  as  an  improvement  shall  not  operate  as  an 
obstruction.  The  court  are  unanimous  in  the  opinion 
that  the  plaintiffs  have  a  right  of  action."  ' 

In  Hutchinson  et  al.  v.  Thompson  et  al.,  9  Ohio,  66, 
the  Supreme  Court  said,  "  The  conclusion  to  which  I 
have  come  is  that  the  clause  in  the  Ordinance  (relating 
to  'navigable  waters')  contains  a  limitation  on  the 
power  of  the  general  government,  as  well  as  a  prohibi- 
tion on  the  States." 

In  the  case  of  Lessees  of  Thomas  Cochran's  Heirs 
V.  David  Loring,  17  Ohio,  409,  the  Supreme  Court 
said  :  ' '  The  principles  declared  in  these  articles  (of 
the  Ordinance  of  1787)  are  to  prevail  not  only  during 
the  territorial  government,  but  for  all  remaining 
time." 

The  Supreme  Court  of  the  United  States  in  Huse  v. 
Glover,  119  U.  S.,  543,  held  that  the  tolls  collected  at 
the  Henry  and  Copperas  Creek  locks  in  the  Illinois  River 
were  not  violations  of  the  Ordinance  of  1787,  in  that 
they  were  taken  simply  as  compensation  for  the  use  of 
artificial  facilities  constructed  to  improve  the  navigation 
of  the  river,  and  not  as  an  impost ;  seeming  to  imply 
that  any  exaction  amountiiig  to  an  impost  would  be  in 
violation  of  the  ordinance,  and  would  be  prohibited. 

In  EscanabaCo.  v.  Chicago,  107  U.  S.,  678,  however, 
that  court  said  :  "  Whatever  limitation  upon  her  powers 
(the  State  of  Illinois)  as  a  government,  whilst  in  the 
Territorial  condition,  whether  from  the  Ordinance  of 
1787,  or  the  legislation  of  Congress,  it  ceased  to  have 
any  operative  force  except  as  voluntarily  adopted  by 
her,  after  she  became  a  State  of  the  Union.  On  her 
admission  she  at  once  became  entitled  to  and  possessed 

'  Williams  aud  Hogg  z'.  Zauesville  Canal  and  Manufactur- 
ing Co.,  5  Ohio,  410. 


The  Ordinance  of  lySj.  1 1  7 

all  the  rights  of  dominion  and  sovereignty  which  be- 
longed to  the  original  States.  She  was  admitted,  and 
could  be  admitted,  only  on  the  same  footing  with 
them." 

In  Sands  v.  Manistee  River  Improvement  Co.,  Nov., 
1887,  123  U.  S.,  288  the  court  said  :  "There  was  no 
contract  in  the  4tli  article  of  the  Ordinance  of  1787 
.  which  bound  the  people  of  the  Territory,  or 
of  any  portion  of  it  when  subsequently  formed  into  a 
State  and  admitted  into  the  Union." 

This  view  has  been  held  with  almost  complete  uni- 
formity by  that  court.  Besides  the  decisions  already  re- 
ferred to  as  setting  it  forth,  it  is  affirmed  in  the  cases  of 
Permoli  v.  the  Municipality  of  New  Orleans,  3  How., 
589  ;  in  Huse  v.  Glover,  119  U.  S.,  543,  and  in  Pollard's 
lessee  V.  Hagan,  3  How.,  391. 

It  may  be  that  the  principle  of  the  sovereignty  of 
the  State  in  its  domestic  affairs,  subject  to  the  Consti- 
tution of  the  United  States,  does  necessarily  render  the 
Ordinance  of  1787  void  in  the  States  formed  out  of  the 
Northwestern  and  Southwestern  Territories.  It  may 
be  that  the  States  formed  out  of  the  Northwestern  Ter- 
ritorj"  might  after  admission  into  the  Union  have  altered 
their  constitutions,  and  established  the  institution  of 
slaver}"  had  they  so  willed.  The  decision  of  the  Supreme 
Court  of  the  United  States  in  the  case  of  Menard  v.  As- 
pasia,  5  Peters,  504  ;  Jan.,  1831,  giving  a  slave  her  free- 
dom, implies  as  much,  for  if  the  terms  of  the  ordinance 
in  §  2,  "  saving,  however,  to  the  French  and  Canadian 
inhabitants  and  other  settlers  of  the  Kaskaskies,  St.  Vin- 
cent's, and  the  neighboring  villages,  who  have  hereto- 
fore professed  themselves  citizens  of  Virginia,  their  laws 
and  customs  now  in  force  among  them,  relative  to  the 
descent  and  convej^ance  of  propert)',"   are  void  in  a 


1 1 8  The  Ordinance  of  lySy. 

State,  all  the  terms  of  the  ordinance  are  void  in  the 
like  case. ' 

There  can  be  no  doubt,  however,  that  the  overwhelm- 
ing public  sentiment  of  the  country  would  have  re- 
garded the  establishment  of  the  institution  of  slavery, 
by  any  State  formed  out  of  the  Northwestern  Territory, 
as  a  violation  of  a  compact,  which  the  founders  of  our 
government  intended  to  be  of  perpetual  obligation. 

It  may  be  that  the  article  of  the  ordinance  requiring 
that  ' '  schools  and  the  means  of  instruction  shall  be 
forever  encouraged  "  for  the  purpose  of  promoting 
' '  religion,   morality  and  knowledge, ' '  is  void  in  the 

>  The  mother  of  Aspasia,  a  colored  woman,  was  born  a  slave 
and  was  held  as  such  by  a  French  inhabitant  of  Kaskaskia, 
Illinois,  previous  to  the  year  1787,  and  after  that  year  was  held 
as  a  slave  by  the  same  individual,  who  was  a  citizen  of  that 
country  before  its  conquest  by  Virginia,  and  before  the  passage 
of  the  ordinance  for  the  government  of  the  territory  northwest 
of  the  river  Ohio,  and  who  continued  to  be  such  afterwards 
and  was  such  at  the  time  of  Aspasia's  birth.  Aspasia  was  born 
in  the  year  1787,  and  from  the  time  of  her  birth  she  was  raised 
and  held  as  a  slave  till  some  time  in  the  year  1821,  when  she 
was  purchased  by  the  plaintiff  in  error,  who  immediately  after 
gave  her  to  his  son-in-law,  Francis  Chouteau,  then  residing  in  St. 
I^ouis,  Mo.,  who  held  her  as  his  slave  until  October  10,  1827, 
when  he  returned  her  to  the  plaintiff  in  error,  in  consequence 
of  the  claim  she  set  up  for  her  freedom. 

The  Circuit  Court  of  St.  Louis  and  the  Supreme  Court  of 
Missouri  sustained  her  claim  for  freedom,  whereupon  appeal 
was  taken  to  the  Supreme  Court  of  the  United  States. 

The  plea  set  up  in  court  against  her  claim  was,  that  the  case 
was  protected  by  the  contract  made  with  the  State  of  Virginia, 
contained  in  the  Ordinance  of  1787  above  cited.  When  Gen. 
Gage  in  1764  took  possession  of  the  country  in  behalf  of  Great 
Britain,  he  promised  in  his  proclamation  to  the  subjects  of 
France  then  in  the  territory,  that  they  should  enjoy  the  same 
rights  and  privileges  and  the  same  security  for  their  persons 


The  Ordinance  of  lySy.  1 19 

States  formed  out  of  the  Northwestern  and  Southwest- 
ern Territories,  and  that  the  prohibition  of  all  religious 
exercises  in  the  public  schools  of  those  States  would 
not  be  a  violation  of  any  fundamental  law  of  the  land, 
but  there  can  be  no  doubt  that  it  was  the  intention  of 
the  founders  of  our  government  to  make  a  fundamental 
law  requiring  that  schools  and  the  means  of  instruction 
should  forever  be  encouraged  for  the  purpose  specified, 
and  that  but  for  the  unforeseen  effect  of  the  principle  of 
State  sovereignty  and  State  equality  such  would  have 
been  the  law. 

and  property  as  under  their  former  sovereign.  The  treaty  made 
with  France  also  gave  the  same  guarant)'. 

In  1778  the  territory  was  conquered  by  the  troops  of  Virginia 
under  Gen.  George  Rogers  Clarke,  and  by  an  act  of  Virginia 
erecting  it  into  a  county  it  was  declared  that  the  inhabitants  shall 
enjoy  their  own  religion,  "  together  with  all  their  civil  rights 
and  property."  The  cession  of  this  territory  by  Virginia  to  the 
United  States  was  made  with  a  full  knowledge  of  the  existence 
of  property  in  slaves  therein,  and  of  the  guaranties  previously 
made.  Congress  recognized  the  existence  of  such  property  in 
the  act  of  May  7,  1800,  which  provided  that  the  division  of  the 
territorj'  of  the  United  States  northwest  of  the  river  Ohio  into 
two  separate  governments  should  take  place  "  when  satisfactory 
evidence  shall  be  given  to  the  Governor  thereof  that  such  is  the 
wish  of  a  majority  of  the  free  male  inhabitants  of  the  age  of 
21  years  and  upwards  "  ;  and  also  provided  that  the  representa- 
tives in  the  General  Assembly  are  to  be  apportioned  to  the 
several  counties  "  agreeably  to  the  number  oifree  males  of  the 
age  of  21  and  upward."  It  was  pleaded  also  that  the  case  was 
protected  by  Article  11  of  the  Ordinance  of  1787,  which  pro- 
vided that  "  No  person  shall  be  deprived  of  his  liberty  or 
property  but  by  the  judgment  of  his  peers  or  the  law  of  the 
laud." 

The  Supreme  Court  of  the  United  States  dismissed  the  case 
for  want  of  jurisdiction,  which,  in  the  circumstances,  was  equiv- 
alent to  a  confirmation  of  the  decision  of  the  lower  court. 


1 20  The  Ordinance  of  lySy. 

There  can  be  no  doubt  that  the  United  States  Gov- 
ernment was  bound  by  the  compact  of  1787  to  promote 
"religion,  morality  and  knowledge,"  by  encouraging 
' '  schools  and  the  means  of  education ' '  within  the 
territory  received  by  cession  from  Virginia  and  Georgia 
while  the  local  governments  therein  were  of  the  terri- 
torial form. 

And  there  can  be  no  doubt  that  the  religion  which 
it  was  under  obligation  to  promote  was  the  Christian 
religion,  and  not  the  religion  of  the  Winnebago  and 
Choctaw  Indians. 

In  view  of  these  facts,  it  can  hardly  be  held  that  the 
founders  of  our  government  intended  to  produce  an 
entire  separation  of  the  religion  of  the  people  from 
their  civil  institutions,  and  it  would  be  preposterous 
to  assume  that  the}^  had  done  what  they  intended  not 
to  do. 


CHAPTER  V. 

THB   COMMON    I,AW. 

In  the  investigation  of  the  question  of  fact,  it  is  to 
be  observed  that  some  connection  between  the  religious 
and  civil  institutions  of  a  people  is  an  inevitable  re- 
sult of  the  conditions  of  all  social  and  political  organi- 
zation. 

So  far,  we  have  not  undertaken  to  define  our  civil 
institutions,  or  to  obtain  any  precise  idea  of  what  they 
are.  Very  important  constituent  elements  of  them  we 
have,  thus  far,  left  entirely  out  of  view.  It  would  be 
a  very  great  error  to  suppose  that  so  brief  a  document 
as  the  Constitution  of  the  United  States  embraced  in 
its  provisions  the  whole  compass  of  our  civil  institu- 


The  Common  Law.  121 

tions.  True,  it  is  the  supreme  law  of  the  land ;  but 
there  was  a  vast  body  of  law  which  existed  long  before 
it  was  framed,  and  which  continued  in  force  under  it, 
either  by  express  provision  or  necessary  implication. 
The  common  law,  and  that  body  of  law  which  we  may 
say  has  been  made  by  equity  decisions,  form  a  very 
large  and  important  part  of  our  civil  institutions. 
Lord  Stair  says  that  "  equity  is  the  body  of  the  law ; 
the  statutes  of  men  are  but  as  the  ornament  and  vesti- 
ture  thereof ' '  The  order  in  the  development  of  the 
civil  institutions  of  a  people,  as  given  by  Sir  Henry 
Maine  in  his  work  on  ancient  law,  has  been,  not 
first,  the  laying  down  of  principles  and  then  building 
thereon,  but,  first,  a  single  judgment  on  a  particular 
case  ;  second,  custom  or  common  law  ;  third,  equity  ; 
fourth,  legislation  and  constitutions.  Constitutions 
came  last  of  all  and  were  super-added  to  a  great  body 
of  law  which  had  previously  existed, — they  viodified, 
but  did  not  displace  the  pre-existent  law.  Amendment 
VIII.  of  the  Constitution  of  the  United  States  says, 
"And  no  fact  tried  by  a  jury  shall  be,  otherwise, 
re-examined  in  any  court  of  the  United  States  than 
according  to  the  rules  of  the  common  law,"  and  all 
the  courts  have  affirmed  the  common  law  to  be  a  part 
of  the  law  of  the  land.  The  common  law  is  not  suffi- 
ciently defined  as  the  Lex  7ion  scripta,  in  distinction 
from  the  Lex  scripta.  Nor  is  it  sufficiently  defined  as 
composed  of  customs,  "whereof  the  memory  of  man 
runeth  not  to  the  contrary."  It  is  in  great  part  writ- 
ten, and  it  also  gives  force  to  customs  that  are  not  of 
immemorial  origin.  Sir  Matthew  Hale  says:  "When 
I  call  those  parts  of  our  laws  Leges  no7i  scriptce,  I  do 
not  mean  as  if  these  laws  were  only  oral,  or  communi- 
cated from  former  ages  to  the  latter  merely  by  word. 


1 2  2  Equity. 

For  all  these  law.s  have  their  several  monuments  in 
writing,  whereby  they  are  transferred  from  one  age  to 
another,  and  without  which  thej^  would  soon  lose  all 
kind  of  certainty.  They  are  for  the  most  part  extant 
in  records  of  pleas,  proceedings,  and  judgments,  in 
books  of  reports,  and  judicial  decisions,  in  tractates  of 
learned  men's  arguments  and  opinions,  preserv^ed  from 
ancient  times  and  still  extant  in  writing. ' '  The  author- 
ity of  the  common  law  is  therefore  not  the  feeble  and 
uncertain  authority  of  a  shadowy  tradition,  but  the 
fixed  and  vigorous  authority  of  a  written  law.  It  has 
a  close  connection  with,  if  it  does  not  derive  a  large 
part  of  its  contents  from,  equity  decisions. 


CHAPTER  VI. 

EQUITY. 

A  CERTAIN  writer  has  said  that  "It  is  impossible, 
in  the  nature  of  things,  that  any  code  of  laws  should 
provide  a  remedy  suited  to  every  particular  case.  It 
has  therefore  been  found  necessary  in  every  civilized 
nation  to  establish  some  form  of  authorit}^  which  should 
control  the  rigor  and  remedy  the  deficiency  of  positive 
law."  Another  has  said  that  "  Some  contrivance  must 
be  provided  to  meet  those  cases  in  which  the  applica- 
tion of  existing  laws  would,  in  the  manifold  complica- 
tions of  human  affairs,  work  injustice."  In  these  cases 
the  judge  must  decide  in  accordance  with  reason  and 
right,  governing  his  decision  by  moral  rather  than  by 
legal  considerations.  ' '  Courts  of  equity  or  chancery 
were  supposed  to  proceed  from  those  principles  which 
affect  the  moral  sense,  and  on  this  account  the  presid- 


Equity.  1 2  3 

ing  judge  or  chancellor  was  in  the  earl}-  daj-s  an  eccle- 
siastic. In  the  old  law  abridgments  chancery  law  is 
found  under  the  title  Conscience. "  '  In  England  it  was 
said  that  "  Equity  flowed  from  the  king's  conscience."  "^ 

Equity  decisions  form  an  important  part  of  the  law 
of  almost  every  civilized  people.  Now  it  is  ven,-  plain 
that  the  decision  of  the  judge  in  these  cases  will  be 
governed  by  the  moral  code  which  prevails  among  the 
people,  and  thus  the  principles  of  that  moral  code, 
whatever  it  maj^  be,  will  enter  into  the  law  of  the  land. 

The  Romans  found  it  to  be  necessary,  in  administering 
justice  among  the  subjugated  Italian  nations  to  allow 
the  judges  to  be  governed  in  their  decisions  by  the  rules 
of  law  which  were  common  to  the  Romans  and  those 
nations ;  whence  sprang  up  what  was  called  the  jus 
getitiuni.  ^ 

The  speculative  Greeks  regarded  the  general  princi- 
ples of  justice,  which  were  applicable  to  all  nations,  as 
having  their  basis  in  nature  ;  and  bj^  nature  they  meant  a 
something  which  was  manifested,  not  onl}'  in  the  forms 
of  the  material  world,  in  the  life  of  plants  and  animals, 
but  also  in  the  thoughts,  feelings,  and  volitions  of  man. 
This  mystic,  primal,  all-per%'ading  something,  called 
nature,  was  the  standard  of  perfection.  As  man  w^as 
not  perfect,  he  had  fallen  ;  and  the  great  work  set 
before  him  was  the  return  to  nature.  To  live  accord- 
ing to  nature  was  to  live  right.*  Upon  the  conquest 
of  Greece  bj-  the  Romans  this  philosophy  made  instan- 
taneous progress  in  Rome,  and  passed  into  the  Jus 
geyitium.  It  has  been  remarked  that  the  Roman  law 
was  constantly  and  powerfully  influenced  by  the  Stoic 
and  Academic  philosoph}-,  and  that  they  were  the  main 

^  Ancient  Laze,  ■^.  sW.  ^Ibid.,  xxii. 

^  Ibid.,  xxvii.,  68.  *Ibid.,  xviii.,  57-62. 


124  Equity. 

sources  of  those  doctrines  of  universal  justice  which 
were  quietly  and  constantly  passing  into  the  civil  law, 
through  their  incorporation  with  judicial  decisions.' 

All  nations  who  are  ruled  by  laws  and  customs  are 
governed  partly  by  their  own  particular  laws  (civil  law), 
and  partly  by  those  laws  which  are  common  to  all  man- 
kind. ' '  Equity  claims  to  supersede  the  civil  law 
by  virtue  of  superior  sanctity  in  its  principles."  "  Its 
claim  to  authority  is  grounded,  not  on  the  prerogative 
of  any  external  person  or  body  ;  not  even  on  that  of 
the  magistrate  who  enunciates  it ;  but  on  the  special 
nature  of  its  principles  to  which,  it  is  alleged,  that  all 
law  ought  to  conform."  "The  rules  of  Equity  pre- 
tend to  a  paramount  sacredness,  entitling  them  at  once 
to  the  recognition  of  courts,  even  without  the  concur- 
rence of  prince  or  parliamentary  assembly."  ^ 

Through  Equity,  the  moral  code  of  a  people  enters 
into  the  laws  by  which  they  are  governed,  and  becomes 
a  part  of  the  law  of  the  land.  If  that  code  rests  upon 
the  teachings  of  the  Zend  Avesta,  then  Zoroastrianism 
will  become  a  part  of  the  law  of  the  land  ;  if  on  the 
Koran,  then  Mohammedanism  ;  if  on  the  Scriptures 
of  the  Old  and  New  Testaments,  then  Christianity  will 
become  part  of  the  law  of  the  land.  It  is,  in  the  nature 
of  things,  inevitable  ;  no  disbelief  of  the  basis  of  the 
code,  or  desire  to  have  it  otherwise  on  the  part  of  par- 
ticular individuals,  can  prevent  it.  The  cup  of  water 
taken  from  the  spring  or  well  contains  various  mineral 
and  organic  matters  in  solution,  and  though  one  should 
prefer  that  it  were  otherwise,  or  believe  that  the  water 
would  be  more  wholesome  if  it  did  not  contain  these 
substances,  yet  it  is  plainly  impossible  that  it  should 
be  otherwise,  coming,  as  the  water  does,  through  beds 
'  Ibid.,  52-4.  ^  Ibid.,  xvii,  27,  28,  44. 


The  Opinions  of  y^irisis.  125 

of  clay  and  gravel  and  crevices  in  rocks  that  are  full 
of  these  substances.  There  might,  perhaps,  be  no  ob- 
jection to  a  man's  preference  or  his  opinions  on  this  sub- 
ject, but  it  would  be  a  great  mistake  to  take  these  as 
exponents  of  the  fact,  and  point  to  the  clearness  of  the 
water  as  a  proof  of  the  fact.  The  question — What  is, 
and  of  necessity  must  be  the  fact  in  such  a  case  ?  it 
would  seem  that  any  reasonable  person  could  answer 
without  a  moment's  hesitation. 

The  question  before  us  is  a  similar  one,  and  it  would 
seem  that  whatever  one's  preference  or  opinion  might 
be,  there  could  hardly  be  a  doubt  as  to  the  fact,  that 
Christianity  does,  and  of  necessity  must,  hold  some 
real  and  valid  connection  w'ith  the  civil  institutions  of 
a  Christian  people. 


CHAPTER  VII. 

the;  opinions  of  jurists. 

Blackstonk  says  in  section  2  of  the  Introduction  to 
his  Commentaries,  "  Upon  these  two  foundations,  the 
law  of  nature  and  the  law  of  revelation,  depend  all 
human  laws ; — that  is  to  sa}',  no  human  laws  should 
be  suffered  to  contradict  these." 

Sir  Matthew  Hale,  in  a  decision  he  gave,  said  that 
"Christianity  is  part  of  the  law  of  England."  Lord 
Mansfield  said :  "  The  true  principles  of  natural  religion 
are  part  of  the  common  law  ;  the  essential  parts  of  re- 
vealed religion  are  part  of  the  common  law  :  so  that  a 
person  vilif3'ing,  subverting,  or  ridiculing  them  may  be 
prosecuted  at  common  law ;  but  temporal  punishments 
ought  not  to  be  inflicted  for  mere  opinions." 


126  The  Opinions  of  ywnsts. 

James  Wilson,  of  Pennsylvania,  who  was  a  member 
of  the  Constitutional  convention  of  the  United  States, 
and  who  was  afterwards  judge  of  the  Supreme  Court 
of  the  United  States,  states  that  profaneness  and  blas- 
phemy are  offences  punishable  by  fine  and  imprison- 
ment, and  that  Christianity  is  part  of  the  common 
law.  ' 

The  late  Theodore  W.  Dwight,  LL.  D,,  President 
of  the  Columbia  College  I^aw  School,  New  York,  says  : 
"It  is  well  settled  by  decisions  in  the  courts  of  the 
leading  States  of  the  Union,  that  Christianity  is  a  part 
of  the  common  law  of  the  State.  .  .  .  The  American 
states  adopted  these  principles  from  the  common  law 
of  England,  rejecting  such  portions  of  the  English  law 
on  this  subject  as  were  not  suited  to  their  customs  and 
institutions.  Our  national  development  has,  in  it,  the 
best  and  purest  elements  of  historic  Christianity,  as  re- 
lated to  the  government  of  States.  Should  we  tear 
Christianity  out  of  our  law  we  would  rob  our  law  of 
its  fairest  jewels ;  we  would  deprive  it  of  its  richest 
treasures  ;  we  would  arrest  its  growth  ;  and  bereave  it 
of  its  capability  to  adapt  itself  to  the  progress  in  culture, 
refinement,  and  morality  of  those  for  whose  benefit  it 
properly  exists."  ^ 

Judge  Story,  in  his  Commentaries  on  the  Const itti- 
tion  of  the  United  States,  (p.  698)  says  :  "  The  right  of 
a  society  or  government  to  interfere  in  matters  of  re- 
ligion will  hardly  be  contested  by  any  persons  who  be- 
lieve that  piety,  religion,  and  morality,  are  intimately 
connected  with  the  well-being  of  the  State,  and  indis- 
pensable to  the  administration  of  civil  justice.  The 
promulgation  of  the  great  doctrines  of  religion,  the 
l)cing,  and  attributes,  and  providence  of  one  Almighty 

'  Works,  vol.  iii.,  p.  112.        "Church  and  State,  Schaff,  p.  61. 


77/6'  Opinions  of  Jurists.  i  2  7 

God;  the  responsibility  to  him  for  all  our*  actions, 
founded  on  moral  freedom  and  accountability  ;  a  future 
state  of  rewards  and  punishments ;  the  cultivation  of 
all  personal,  social,  and  benevolent  virtues, — these  never 
can  be  a  matter  of  indifference  to  a  well-ordered  com- 
munity. It  is,  indeed,  difficult  to  conceive  how  any 
civilized  society  can  exist  without  them.  And,  at  all 
events,  it  is  impossible  for  those  who  believe  in  the  truth 
of  Christianity  as  a  divine  revelation  to  doubt  that  it  is 
the  special  duty  of  the  government  to  foster  and  en- 
courage it  among  all  citizens  and  subjects.  This  is  a 
point  wholly  distinct  from  that  of  private  judgment,  in 
matters  of  religion,  and  of  freedom  of  public  worship, 
according  to  the  dictates  of  one's  own  conscience.  .  .  . 
Probably  at  the  time  of  the  adoption  of  the  Constitution, 
and  of  the  amendment  of  it  now  under  consideration 
(Amendment  I.  '  Congress  shall  make  no  law  respect- 
ing an  establishment  of  religion  or  prohibiting  the  free 
exercise  thereof.')  the  general,  if  not  the  universal, 
sentiment  in  America  was  that  Christianity  ought  to 
receive  encouragement  from  the  State,  so  far  as  it  is 
not  incompatible  with  the  private  rights  of  conscience 
and  the  freedom  of  religious  worship.  An  attempt  to 
level  all  religions,  and  to  make  it  a  matter  of  State  pol- 
icy to  hold  all  in  utter  indifference,  would  have  created 
universal  disapprobation,  if  not  universal  indignation." 


CHAPTER  VIII. 

DECISIONS  OF   THE   STATE)   SUPREME;    COITRTS. 

The;  Supreme  Court  of  New  York  in  the  case  of  the 
People  t'.  Ruggles,  August  1811,  the  indictment  being 
for  blasphemous  utterances  against  Christ, — Kent,  Chief 


1 2  8  Legal  Decisions. 

Justice,  delivering  the  opinion,  said  :  "  The  very  idea 
of  jurisprudence  with  the  ancient  lawgivers  and  phi- 
losophers embraced  the  religion  of  the  country.  .  .  . 
The  free  and  undisturbed  enjoyment  of  religious  opin- 
ion, whatever  it  maybe,  and" free,  decent  discussions 
on  any  religious  subject  is  granted  and  secured  ;  but 
to  revile  with  malicious  and  blasphemous  contempt 
the  religion  professed  by  almost  the  whole  community 
is  an  abuse  of  right.  Nor  are  we  bound  by  any  ex- 
pressions in  the  Constitution,  as  some  have  strangely 
supposed,  either  not  to  punish  at  all,  or  to  punish  in- 
discriminately, the  like  attacks  upon  the  religion  of 
Mahomet  or  of  the  grand  Lama  ;  and  for  this  plain 
reason  that  the  case  assumes  that  we  are  a  Christian 
people,  and  the  morality  of  the  country  is  deeply  en- 
grafted upon  Christianity,  and  not  upon  the  doctrines 
or  worship  of  those  impostors.  .  .  .  The  object  of 
the  38th  article  of  the  constitution  was  to  '  guard 
against  spiritual  oppression  and  intolerance,'  by  declar- 
ing that  '  the  free  exercise  and  enjoyment  of  religious 
profession  and  worship,  without  discrimination  or  pre- 
ference, should  forever  thereafter  be  allowed  within 
this  state  to  all  mankind.'  This  declaration,  (noble 
and  magnanimous  as  it  is,  when  duly  understood,) 
never  meant  to  withdraw  religion  in  general,  and  with 
it  the  best  sanctions  of  moral  and  social  obligation, 
from  all  consideration  and  notice  of  the  law. ' '  ' 

In  the  decision  of  the  Supreme  Court  of  New  York 
in  the  case  of  lyindenmuller  v.  the  People,  Feb.  4,  1861, 
Judge  J.  Allen,  delivering  the  opinion,  said  :  "  Reli- 
gious tolerance  is  entirely  consistent  with  a  recognized 
religion.  Christianity  may  be  conceded  to  be  the  es- 
tablished religion,  to  the  qualified  extent  mentioned, 
'  8J0I1USOU,  290. 


Legal  Decisions.  1 29 

while  perfect  civil  and  political  equality  with  freedom 
of  conscience  and  religious  preference  is  secured  to 
individuals  of  every  other  creed  and  profession.  It  is 
not  disputed  that  Christianity  is  a  part  of  the  common 
law  of  England,  and  in  Rex  v.  Woolston  Str.  834,  the 
court  of  King's  bench  would  not  suffer  it  to  be  de- 
bated, whether  to  write  against  Christianity  in  general 
was  not  an  offence  punishable  in  the  temporal  courts  at 
common  law.  The  common  law,  as  it  was  in  force  on 
the  20th  day  of  April,  1777,  subject  to  such  alterations 
as  have  been  made  from  time  to  time  by  the  lyCgisla- 
ture,  and  except  such  parts  of  it  as  are  repugnant  to 
the  Constitution  is,  and  ever  has  been,  a  part  of  the 
law  of  the  State. ' '  The  Court  goes  on  to  say  that :  "  It 
was  conceded  in  the  convention  of  1821  that  the  court 
in  People  v.  Ruggles  did  decide  that  the  christian  re- 
ligion was  the  law  of  the  land,  in  the  sense  that  it  was 
preferred  over  all  other  religions,  and  entitled  to  the 
recognition  and  protection  of  the  temporal  courts  by  the 
common  law  of  the  State.  Mr.  Root  proposed  an 
amendment  to  obviate  that  decision  ...  to  the 
effect  that  the  judiciary  should  not  declare  any  particu- 
lar religion  to  be  the  law  of  the  land.  The  decision 
was  vindicated  as  a  just  exponent  of  the  Constitution, 
and  the  relation  of  the  Christian  religion  to  the  State  ; 
and  the  amendment  was  opposed  by  Chancellor  Kent, 
Daniel  D.  Tompkins,  Col.  Young,  Mr.  Van  Buren, 
Rufus  King,  and  Chief-Justice  Spencer,  and  rejected 
by  a  large  majority  ;  and  the  former  provision  retained, 
with  the  judicial  construction  in  People  v.  Ruggles 
fully  recognized.  New  York  State  Convention  of  1821, 
/<5^-57/.  It  is  true  that  the  gentlemen  differed  in 
their  views  as  to  the  effect  and  extent  of  the  decision, 
and  as  to  the  legal  status  of  the  Christian  religion  in 


1 30  Legal  Decisions. 

the  State.  One  class,  including  Chief-Justice  Spencer 
and  Mr.  King,  regarded  Christianity — the  Christian 
religion — as  distinguished  from  Mohammedanism,  etc., 
as  a  part  of  the  common  law,  adopted  by  the  Con- 
stitution ;  while  another  class,  including  Chancellor 
Kent  and  Mr,  Van  Buren,  were  of  the  opinion  that  the 
decision  was  right,  not  because  Christianity  was  es- 
tablished by  law,  but  because  Christianity  was  in  fact 
the  religion  of  the  country,  the  rule  of  our  faith  and 
practice,  and  the  basis  of  public  morals.  According  to 
their  views,  as  the  recognized  religion  of  the  country, 
'the  duties  and  injunctions  of  the  Christian  religion  ' 
were  interwoven  with  the  law  of  the  land  and  were 
part  and  parcel  of  the  common  law,  and  that  mali- 
ciously to  revile  it  is  a  public  grievance,  and  as  much 
so  as  any  other  outrage  upon  common  decency  and 
decorum.  This  difference  in  views  is  in  no  sense  ma- 
terial' as  it  leads  to  no  difference  in  practical  results 
and  conclusions.  All  agreed  that  the  Christian  reli- 
gion was  engrafted  upon  the  law  and  entitled  to  pro- 
tection as  a  basis  of  our  morals  and  the  strength  of 
our  government,  but  for  reasons  differing  in  terms 
and  in  words,  rather  than  in  substance,  .  .  ,  The 
conviction  was  right,  and  judgment  must  be  affirmed,"  ' 
One  Updegraph  was  indicted  in  Pennsylvania  for 
blasphemy  in  saying  that  ' '  The  Holy  Scriptures  were 
a  mere  fable  ;  that  they  were  a  contradiction,  and  that 
although  they  contained  a  number  of  good  things,  yet 
they  contained  a  great  many  lies,"  and  was  charged 
with  ' '  contriving  and  intending  to  scandalize  and  bring 
into  disrepute  and  vilify  the  Christian  religion  and 
the  Scriptures  of  Truth     .     .     ,     to  great  dishonor  of 

'  33  Barbour,  560-578.     (Judgmeut  for  violation  of  the  law 
against  Sunday  theatres;. 


Legal  Decisions.  1 3 1 

Almighty  God,  to  the  great  scandal  of  the  profession 
of  the  Christian  religion,  to  the  evil  example  of  all 
others  in  like  case,  offending  and  against  the  form  of 
the  Act  of  Assembly  in  such  case  made  and  provided." 
The  plea  in  defence  was,  ist,  That  the  Act  of  1700 
("An  act  to  prevent  the  grievous  sins  of  cursing 
and  swearing,"  etc.)  was  virtually  repealed  b}-  the 
adoption  of  the  Constitution  of  1776.  2d,  If  the  Con- 
stitution of  1776  repealed  the  Act  of  1700  it  also 
repealed  the  common  law  upon  the  subject.  3d.  Such 
expression  only  becomes  criminal  when  it  interferes 
with  the  order  of  government,  disturbs  the  peace  of 
society.  4th,  This  State  was  a  British  province  at  the 
time  the  law  of  1700  had  its  birth,  a  part  of  the  Brit- 
ish empire,  when  it  was  necessary,  as  the  Christian 
religion  formed  part  of  the  laws  of  the  land,  that  laws 
should  be  enacted  for  its  support  and  protection.  It 
was  then  consistent  with  the  system  of  despotism 
under  which  the  country  groaned ;  it  formed  a  neces- 
sary' part  of  the  whole  machine. 

The  case  went  to  the  Supreme  Court  of  Pennsylvania 
and  that  Court,  (Duncan,  Justice,  delivering  the  opin- 
ion,) said:  "The  assertion  is  once  more  made  that 
Christianity  never  was  received  as  part  of  the  common 
law  of  this  Christian  land,  and  it  is  added  that  if  it  was, 
it  was  virtually  repealed  b}-  the  Constitution  of  the 
United  States,  as  inconsistent  with  the  liberty  of  the 
people,  the  freedom  of  religious  worship,  and  hostile 
to  the  genius  and  spirit  of  our  government.  .  .  .  We 
will  first  dispose  of  what  is  considered  the  grand  objec- 
tion, the  Constitutionality  of  Christianity  ;  for  in  effect 
that  is  the  question.  Christianity,  general  Christianity, 
is,  and  always  has  been,  a  part  of  the  common  law  of 
Pennsylvania  ;  Christianity,  without  the  spiritual  artil- 


1 3  2  Legal  Decisions. 

lery  of  European  countries,  for  this  Christianity  was 
one  of  the  considerations  of  the  royal  charter,  and  the 
very  basis  of  its  great  founder  William  Penn  ;  not 
Christianity  founded  on  any  particular  religious  ten- 
ets ;  not  Christianity  with  an  established  church  and 
tithes  and  spiritual  courts  ;  but  Christianity  with  lib- 
erty of  conscience  to  all  men.  .  .  .  It  is  liberty 
run  mad  to  declaim  against  the  punishment  of  these 
offences,  or  to  assert  that  the  punishment  is  hostile  to 
the  spirit  and  genius  of  our  government.  .  .  .  No 
free  government  now  exists  in  the  world  unless  where 
Christianity  is  acknowledged  and  is  the  religion  of  the 
country.  So  far  from  Christianity,  as  the  counsel  con- 
tends, being  part  of  the  machinery  necessary  to  despot- 
ism, the  reverse  is  the  fact.  Christianity  is  part  of  the 
common  law  of  this  state.  It  is  not  proclaimed  by 
the  commanding  voice  of  any  opinion,  but  expressed 
in  the  calm  and  mild  accents  of  customary  law.  Its 
foundations  are  broad,  and  strong,  and  deep ;  they  are 
laid  in  the  authority,  the  interest,  the  affections  of  the 
people."  ' 

In  the  case  of  Johnson  v.  Commonwealth,  being  a 
complaint  for  running  an  omnibus  into  the  city  of  Pitts- 
burgh on  Sunday,  the  Supreme  Court  of  the  same 
State  said,  Woodward  delivering  the'  opinion.  Black 
and  Lewis  dissenting,  "  The  common  law  adopted  it 
(Sunday)  along  with  Christianity,  of  which  it  is  one  of 
the  bulwarks. ' '  ^ 

In  the  case  of  the  State  v.  Ambs,  the  indictment  being 
for  keeping  open  an  alehouse  on  Sunday,  on  appeal  to 
the  Supreme  Court  of  Missouri,  the  plea  was  made  in 

'  Updergraph  v.  the  CommouweaUh,  1 1  Sergeant  and  Rawle, 
398  ;  1822. 

'■*  10     Harris,  102,  115. 


Les^al  Decisions. 


defence,  "  that  the  whole  system  of  laws,  designed  to 
enforce  the  observance  of  the  Christian  Sabbath,  is  un- 
constitutional :  I  St.  They  interfere  with  the  rights  of 
conscience.  2d,  They  impose  a  religious  form  of  wor- 
ship. 3d.  They  give  a  preference  to  one  religious  sect 
over  all  others."  The  Court  said,  Scott,  J.,  delivering 
the  opinion,  and  all  concurring:  "  Those  who  question 
the  constitutionality  of  our  Sunday  laws  seem  to 
imagine  that  the  Constitution  is  to  be  regarded  as  an 
instrument  framed  for  a  State,  composed  of  strangers, 
collected  from  all  quarters  of  the  globe,  each  with  a 
religion  of  his  own,  bound  by  no  previous  social  ties, 
nor  sympathizing  in  any  common  reminiscences  of  the 
past ;  that,  unlike  ordinary  laws,  it  is  not  to  be  con- 
strued in  reference  to  the  state  and  condition  of  those 
for  whom  it  was  intended.  .  .  .  It  is  apprehended 
that  such  is  not  the  mode  by  which  our  organic  law  is 
to  be  interpreted.  We  must  regard  the  people  for 
whom  it  was  ordained.  It  appears  to  have  been  made 
by  Christian  men.  The  Constitution  on  the  face  of  it 
shows  that  the  Christian  religion  was  the  religion  of 
its  framers.  .  .  .  The  convention  sat  under  a  law 
exacting  a  cessation  of  labor  on  Sunday.  The  jour- 
nal of  the  convention  will  show  that  this  law  was 
obeyed  by  its  members,  as  such,  by  adjourning  from 
Saturday  until  Monday.  .  .  .  They  then  who  en- 
grafted on  our  constitution  the  principles  of  religious 
freedom,  therein  contained,  did  not  regard  the  com- 
pulsory obsei-vance  of  Sunday  as  a  day  of  rest  a  vio- 
lation of  those  principles.  They  deemed  a  statute 
compelling  the  obser\'ance  of  Sunday  necessary  to 
secure  the  full  enjoyment  of  the  rights  of  con- 
science." ' 

'  20  Missouri,  Bennett,  v.,  pp.,  214,  221. 


1 34  Legal  Decisions. 

In  the  case  of  Shover  v.  the  State,  the  Supreme  Court 
of  Arkansas  said  :  "  This  system  of  religion  (the  Chris- 
tian) is  recognized  as  constituting  part  and  parcel  of  the 
common  law,  and  as  such  all  of  the  institutions  grow- 
ing out  of  it,  or  in  any  way  connected  with  it,  in  case 
they  shall  not  be  found  to  interfere  with  the  rights  of 
conscience,  are  entitled  to  the  most  profound  respect 
and  can  rightfully  claim  the  protection  of  the  law-mak- 
ing power  of  the  State."  Indictment  for  keeping  a 
dram  shop  open  on  Sunday.' 

In  the  case  of  Richmond  v.  Moore, ^  the  Supreme 
Court  of  Illinois,  Walker,  J.  delivering  the  opinion, 
said,  "  Although  it  is  no  part  of  the  functions  of 
our  system  of  government  to  propagate  religion  and 
enforce  its  tenets,  yet  when  the  great  body  of  the 
people  are  Christians,  in  fact,  or  in  sentiment,  our 
laws  and  our  institutions  must  necessarily  be  based 
upon  and  embody  the  teachings  of  the  Redeemer  of 
mankind.  It  is  impossible  that  it  should  be  otherwise. 
And,  in  this  sense,  and  to  this  extent,  our  civilization 
and  our  institutions  are  emphatically  Christian." 

In  the  case  of  the  State  v.  Chandler,^  the  Supreme 
Court  of  Delaware  rendered  a  decision  distinguished 
for  its  learning  and  its  clear  enunciation  of  principles. 
The  indictment  "was  for  blasphemy,  and  charged  that 
Thomas  J.  Chandler  on  the  loth  day  of  May  in  the 
year  of  our  Lord  1836,  with  force  and  arms,  and  not 
having  the  fear  of  the  L,ord  before  his  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  and 
contriving  and  intending  to  scandalize  and  vilify  the 
Christian  religion,  and  to  blaspheme  God  and  our  Lord 
Jesus  Christ,  the  Savior  of  the  world,  unlawfully,  wick- 

'  5  Arkansas,  English,  260.  '  107  Illinois,  p.  429. 

3  2  Harrington,  553. 


Legal  Decisions.  1 3  5 

edl}^,  and  blasphemously ,  in  the  presence  and  hearing  of 
div'ers  citizens  of  this  State,  spoke,  pronounced  and 
with  a  loud  voice  published  these  profane  and  blasphe- 
mous words,  viz.  :  That  the  Virgm  Mary  teas  a  xvhore 
and  Jesus  Christ  was  a  bastard ;  to  the  great  dishonor  of 
Ahnighty  God,  in  contempt,  and  to  the  great  scandal 
of  the  christian  religion,  against  the  form  of  an  act  of 
the  General  Assembly,  in  such  case  made  and  provided; 
and  against  the  peace  and  dignity  of  the  State." 

M'Beth,  of  counsel  for  the  defendant,  relied  mainly 
on  the  alleged  uncon.stitutionality  of  the  statute  against 
blasphemy,  as  being  a  law  preferring  Christianity  to 
other  modes  of  worship, 

"  After  verdict,  the  defendant's  counsel  moved  in  ar- 
rest of  judgment  in  each  case  (he  had  been  tried  and 
convicted  in  another  case,  in  which  he  had  simply  trans- 
posed the  terms  of  the  statement,  saying  \h3X  Jesus  Christ 
was  a  a7id  the    \^irghi  Mary  was  a  ,)  and 

the  question  of  the  constitutionalit}^  of  the  statute 
against  blasphemy  was  again  discussed,  Rogers,  deputy 
Attorney  General  for  the  State,  and  M'Beth  for  the  de- 
fendant. .  .  .  The  court  held  both  cases  under  ad- 
visement until  the  November  term,  1837,  (The  first 
hearing  having  been  at  the  Maj'  term  proceeding)  when 
the  following  opinion  was  delivered  by  the  Chief  Justice, 
J.  M.  Clayton." 

The  Court  said,  "  It  is  true  that  the  maxim  of  the 
English  law  that  '  Christianitj^  is  part  of  the  common 
law,'  may  be  liable  to  misconstruction,  and  has  been 
misunderstood.  It  is  a  ciurrent  phrase  among  the  spe- 
cial pleaders,  '  that  the  Almanac  is  a  part  of  the  law  of 
the  land,'  By  this  it  is  meant  that  the  court  will  ju- 
dicially notice  the  daj^s  of  the  week,  month,  and  other 
things    properly   belonging    to   an   almanac,    without 


36  Legal  Decisions. 


pleading  or  proving  them.  In  the  same  sense  it  is 
sometimes  said  that  the  lex  parliamentaria  is  a  part  of 
the  law  of  the  land.  So,  too,  we  apprehend,  every 
court  in  a  civilized  country  is  bound  to  notice  in  the 
same  way  what  is  the  prevailing  religion  of  the  people. 
.  .  .  It  (the  common  law)  took  cognizance  of  and 
gave  faith  and  credit  to  the  religion  of  Christ  as  the 
religion  of  the  common  people.  It  acknowledged  their 
right  voluntarily  to  prefer  that  religion,  and  to  be  pro- 
tected in  the  enjoyment  of  it  ;  and  it  carried  that  pro- 
tection to  the  full  length  of  punishing  any  man  who 
outraged  the  feelings  of  the  people,  and  insulted  civil 
society,  by  wantonly  and  maliciously  reviling  or  ridi- 
culing the  religion  which  they  had  freely  preferred,  and 
upon  which  they  had  staked  all  their  hopes  and  happi- 
ness, both  here  and  hereafter.  .  .  .  The  distinction 
is  a  sound  one  between  a  religion  preferred  by  law  and 
a  religion  preferred  by  the  people,  without  the  coercion 
of  law.  .  .  .  We  hold  that  the  people  of  Delaware 
have  a  full  and  perfect  constitutional  right  to  change 
their  religion  as  often  as  they  see  fit.  They  may  to- 
morrow, if  they  think  it  right,  profess  Mahometanism 
or  Judaism,  or  adopt  any  other  religious  creed  they 
please  ;  and  so  far  from  any  court  having  power  to  pun- 
ish them  for  such  an  exercise  of  right,  all  their  judges 
are  bound  to  notice  their  free  choice  and  religious  prefer- 
ence, and  to  protect  them  in  the  exercise  of  their  right. 
Put  the  case  then  that  they  repudiate  the  religion  of 
their  fathers  and  adopt  Judaism  ;  and  that  their  legis- 
lature in  obedience  to  their  wishes  ordains  that  to  deride 
or  ridicule  the  Jewish  creed  shall  be  blasphemy,  and 
punishable,  as  blasphemy  is  now  punished.  On  an 
indictment  against  any  man  for  maliciously  revileing 
Moses  in  public,  in  the  language  of  this  defendant,  and 


Legal  Decisions.  137 

publishing  the  Jewish  religion  as  a  villainous  impos- 
ture, are  we,  or  are  we  not  bound  to  sentence  him  ac- 
cording to  the  statute  ?  Suppose  the  people  then  abjure 
Judaism,  adopt  the  Koran  and  profess  the  religion  of 
Mahomet.  If  their  legislature  enact  that  to  revile  or 
ridicule  the  prophet  shall  be  blasphemy,  may  we,  or 
may  we  not  against  him  who  shall  go  in  to  their  public 
places  and  with  a  loud  voice,  maliciously  revile  and  ridi- 
cule Mahomet,  denounce  the  penalties  of  their  statute  ? 
.  .  .  It  will  be  seen  that  in  our  judgment,  by  the 
Constitution  and  laws  of  Delaware,  the  Christian  reli- 
gion is  a  part  of  those  laws  ;  so  far  that  blasphemy 
against  it  is  punishable,  while  the  people  prefer  it  as 
their  religion,  and  no  longer.  The  moment  they  change 
it  and  adopt  any  other,  as  they  may  do,  the  new  reli- 
gion becomes  in  the  same  sense  a  part  of  the  law, 
for  their  courts  are  bound  to  yield  it  faith  and  credit, 
and  respect  it  as  their  religion.  .  .  .  But  it  may, 
and  will  be  objected,  by  some  (for  the  question  has  ex- 
cited deep  interest  among  the  writers  of  the  day)  that 
this  mode  of  considering  the  subject  is  open  to  the  re- 
mark that  the  law  may  forever  change  with  the  religion 
and  customs  of  the  people.  Then  it  may  be  said,  that 
the  Christian  himself  may  live  to  see  the  day  when  he 
shall  not  dare  to  proclaim  publicly  that  the  religion  of 
Mahomet,  or  the  impostures  of  Joe  Smith,  are  the  just 
topics  of  his  ridicule  and  contempt.  We  answer  that 
when  that  day  shall  arrive,  (if  come  it  must)  in  which 
the  people  shall  forsake  the  faith  of  their  forefathers  for 
such  miserable  delusions,  no  human  power  can  restrain 
them  from  compelling  every  man,  who  lives  among 
them,  to  respect  their  feelings.  A  new  code  of  laws, 
and  a  new  Constitution,  would  at  once  spring  into  ex- 
istence, if  they  found  that  those  under  which  we  live 


1 38  Legal  Decisions. 

did  not  protect  them  from  such  insults.  But  in  that 
event  no  man  could  justify  himself  under  the  present 
civil  institutions  of  the  State  in  endangering  the  public 
peace.  He  might  feel  himself  impelled  by  a  stern  sense 
of  religious  duty  to  brave  public  opinion  and  become  a 
martyr  for  his  zeal.  All  this  he  might  do  and  justify 
himself  in  his  own  opinion  for  it  before  God.  So  too 
that  resistance  to  government,  which  would  be  rebel- 
lion or  treason  in  a  court  of  law,  may  be  patriotism  and 
virtue  in  foro  consciencicB.  He  who  forcibly  resists  a 
bad  religion  is  thus  far  like  him  who  resists  a  bad  gov- 
ernment :  if  successful  in  his  resistance  he  may  become 
a  reformer  of  men  or  a  hero  :  if  unsuccessful,  a  martyr 
or  a  traitor.  But  a  court  of  law  is  not  merely  \h&foru7n 
consciencice.  When  human  justice  is  rightly  adminis- 
tered according  to  our  common  law  and  our  Constitu- 
tion, it  refuses  all  jurisdiction  over  crimes  against  God, 
unless  they  are  by  necessary  consequence  crimes 
against  civil  society,  and  known  and  defined  as  such 
by  the  law  of  man.  It  assumes  that  for  sin  against 
our  Creator,  vengeance  is  his,  and  he  will  repay.  It 
adapts  itself  to  the  condition  of  man  as  he  is.  ...  So 
far  from  its  being  true  that  it  (the  common  law)  cannot 
suit  itself  to  the  religious  and  moral  code,  and  the  ever 
varying  conditions  of  the  people,  whenever  they  vol- 
untarily prefer  to  change  them,  it  tolerates  every 
change  in  either,  prohibits  no  reformation  ;  and,  keep- 
ing constantly  in  view  that  its  great  object  is  to 
preserve  the  public  peace  and  good  order  of  society, 
without  dictating  what  religion  will  best  sustain  it,  or 
prohibiting  any  reformation  in  religious  matters,  it  tol- 
erates under  all  circumstances  every  attempt  to  change 
which  does  not  by  some  overt  act  endanger  the  public 
peace  and  safety.     It  is  emphatically  a  law  for  the  pro 


Legal  Decisions.  1 39 

tection  of  religious  liberty,  and  no  law  can  be  such 
which  does  not  protect  the  public  peace  from  insults 
and  outrages  upon  public  opinion,  when  freely  estab- 
lished and  known  to  be  so,  whether  the  protection  be 
for  Christian,  Infidel,  Jew,  or  Turk." 


CHAPTER  IX. 

DECISIONS   OF  THE  UNITED  STATES  SUPREME  COURT. 

The  question  was  in  issue  before  that  court  in  1844 
in  the  case  of  Vidal  and  others  v.  the  Executors  of 
Stephen  Girard. 

Stephen  Girard,  who  died  in  Philadelphia,  Pa.,  in 
1 83 1,  left  by  his  will  forty-five  acres  of  land  and  two 
millions  of  dollars  to  found  and  endow  a  college,  in 
which  poor  white  male  orphans  between  six  and  ten 
j^ears  of  age  were  to  be  received,  educated,  and  main- 
tained until  they  were  between  fourteen  and  eighteen 
years  of  age.  One  of  the  provisions  of  the  will  was  as 
follows,  viz.  :  "  I  enjoin  and  require  that  no  ecclesiastic, 
missionary,  or  minister  of  any  sect  whatever  shall  ever 
hold  or  exercise  any  station  or  duty  whatever  in  the 
said  college ;  nor  shall  any  such  person  ever  be  ad- 
mitted for  any  purpose  within  the  premises  appro- 
priated to  the  purposes  of  said  college. ' '  The  will  was 
contested  on  three  grounds  :  ist,  on  account  of  the 
uncertainty  in  the  description  of  those  who  are  in- 
tended to  receive  its  benefits ;  2d,  on  account  of  the 
incompetence  of  the  city  of  Philadelphia  to  receive  the 
trust ;  3d,  because  the  plan  proposed  by  Mr.  Girard 
was  derogator>^  to  the  Christian  religion.  Mr.  Web- 
ster, the  great  expounder  of  the  Constitution,  appeared 


1 40  Legal  Decisions. 

for  the  contestants,  and  made  in  the  case  one  of 
his  notable  legal  arguments.  Upon  the  last  ground 
of  contest  the  substance  of  his  argument  was  :  ist. 
Our  civil  institutions  are  Christian.  2d.  Any  bequest 
which  is  made  purposely  hostile  to  Christianity  cannot 
receive  the  protection  of  the  law  as  a  charity.  3d. 
The  hostility  manifested  in  the  provisions  of  the  will 
against  the  agents  employed  in  the  promotion  of  Chris- 
tianity must  be  construed  as  hostility  to  Christianity 
itself.  He  argues  that  while  there  is  in  this  land  per- 
fect freedom  of  opinion,  of  speech,  and  worship,  yet 
the  law  cannot  use  its  power  to  establish  and  per- 
petuate anything  that  is  directly  and  avowedly  hostile 
to  Christianity.  He  says:  "Any  man  may  go  into 
that  State  [Pennsylvania]  and  speak  or  write  as  much 
as  he  pleases  against  a  popular  form  of  government, 
freedom  of  suffrage,  trial  by  jury  ;  he  may  decry  civil 
liberty,  and  assert  the  divine  right  of  kings,  still  he 
does  nothing  criminal ;  but  if  to  give  success  to  such 
efforts  special  powers  from  a  court  of  justice  is  required 
it  will  not  be  given.  ...  If  Mr.  Girard  in  his 
life  time  had  founded  schools  and  employed  teachers  to 
preach  and  teach  infidelity,  or  against  popular  govern- 
ment, free  suffrage,  trial  by  jury,  or  the  alienability  of 
property,  there  was  nothing  to  stop  him  or  prevent 
him  from  doing  so  ;  but  where  any  one  or  all  of  these 
come  to  be  provided  for  a  school  or  system,  as  a  cliarit}^ 
and  come  before  the  courts  for  favor,  then  in  neither 
one,  nor  all,  nor  any,  can  they  be  favored,  because  they 
are  opposed  to  the  general  public  policy  and  public  law 
of  the  State. ' '  He  says  :  ' '  There  can  be  found  no  such 
thing  as  a  school  of  instruction,  in  a  Christian  land, 
from  which  the  Christian  religion  has  been,  of  intent 
and  purpose,  rigorously  and  opprobriously  excluded, 
and  yet  such  school  regarded  as  a  charitable  trust,  a 


Legal  Decisions.  1 4 1 

foundation.  I  do  not  say  that  there  may  not  be  charity 
schools  in  which  religious  instruction  is  not  provided. 
I  need  not  go  that  length,  although  I  take  that  to  be 
the  rule  of  the  English  law,  but  what  I  do  say  and 
repeat  is  that  a  school  for  the  instruction  of  the  young, 
which  sedulously  and  reproachfully  excludes  Christian 
knowledge,  is  no  charity,  either  on  principle  or  author- 
ity, and  is  not  therefore  entitled  to  the  character  of  a 
charity  in  a  court  of  Equity.  I  have  considered  this 
proposition,  and  am  ready  to  stand  by  it.  I  am  willing 
that  inquiry  should  be  prosecuted  to  any  extent  of  re- 
search to  controvert  this  position. "  "  There  is  nothing 
we  look  for  with  more  certainty  than  this  general 
principle,  that  Christianity  is  part  of  the  law  of  the 
land.  This  was  the  case  among  the  Puritans  of  Eng- 
land, the  Episcopalians  of  the  Southern  States,  the 
Pennsj'lvania  Quakers,  the  Baptists,  the  mass  of  the 
followers  of  Whitefield  and  Wesley,  and  the  Presbyte- 
rians,— all  brought  and  adopted  this  great  truth,  and  all 
have  sustained  it.  And  where  there  is  zwy  religious 
sentiment  among  men  at  all,  this  sentiment  incorpo- 
rates itself  with  the  law.  Every  thing  declares  it, — the 
massive  cathedral  of  the  Catholic,  the  Episcopal  church 
with  its  lofty  spire  pointing  heavenward,  the  plain 
temple  of  the  Quaker,  the  log  church  of  the  hardy  pio- 
neer of  the  wilderness,  the  mementos  and  memorials 
around  us,  the  graveyards,  their  tombstones  and  epi- 
taphs, the  silent  vaults,  the  mouldering  contents, — all 
attest  it.  The  dead  prove  it,  as  well  as  the  living. 
All,  all  proclaim  that  Christianity,  general,  tolerant 
Christianity,  Christianity  independent  of  sects  and  par- 
ties, that  Christianity  to  which  the  sword  and  fagot 
are  unknown,  general,  tolerant  Christianity,  is  the  law 
of  the  land.'" 

'  Works,  vol.  vi.,  pp.  133,  177. 


142  Legal  Decisions. 


The  will  was  sustained  by  the  court.  Not,  however, 
because  the  validity  of  the  first  two  propositions  in 
Mr.  Webster's  argument  was  questioned,  their  validity 
being  expressly  affirmed  by  the  court,  but  because  the 
construction  of  the  will  set  forth  in  the  third  proposi- 
tion, which  was  that  the  hostility  manifested  in  the 
will  against  the  agents  employed  in  promoting  Chris- 
tianity must  be  construed  as  hostility  against  Christi- 
anity itself,  was  held  by  the  court  not  to  be  a  necessar}^ 
construction,  and  not  in  accordance  with  the  facts  in 
the  case.  Justice  Story  delivered  the  opinion  of  the 
court,  which  was  unanimous.  The  Court  says  :  "  It  is 
also  said,  and  truly,  that  the  Christian  religion  is  a  part 
of  the  common  law  of  Pennsylvania  ;  .  .  .  yet  it 
is  so  in  this  qualified  sense,  that  its  divine  origin  and 
truth  are  admitted,  and,  therefore,  that  it  is  not  to  be 
maliciously  and  openly  reviled  and  blasphemed  against, 
to  the  annoyance  of  believers,  or  the  injury  of  the  pub- 
lic. .  .  .  There  must  be  plain,  positive,  and  express 
provisions  demonstrating,  not  only  that  Christianity  is 
not  to  be  taught,  but  that  it  is  to  be  impugned  or  repu- 
diated. Now  in  the  present  case  there  is  no  pretence 
to  say  that  any  such  positive  or  express  provisions  ex- 
ist, or  are  even  shadowed  forth  in  the  will.  The  tes- 
tator does  not  say  that  Christianity  shall  not  be  taught 
in  the  college,  but  only  that  no  ecclesiastic  of  any  sect 
shall  hold  or  exercise  any  station  in  the  college.  Sup- 
pose, instead  of  this,  he  had  said  that  no  person  but  a 
layman  shall  be  an  instructor,  or  officer,  or  visitor  in 
the  college.  What  legal  objection  could  be  made  to 
such  restriction,  and  yet  the  actual  prohibition  is  in 
effect  the  same  in  substance.  But  it  is  asked,  why  are 
ecclesiastics  excluded  if  it  is  not  because  they  are  the 
stated  and  appropriate  preachers  of  Christianity  ?     The 


Legal  Decisions.  143 

answer  may  be  given  in  the  very  words  of  the  testator  : 
'  In  making  this  restriction  I  do  not  mean  to  cast  any 
reflection  on  any  sect  or  person  w'hatsoever  ;  but  I  de- 
sire to  keep  the  tender  minds  of  the  orphans  who  are 
to  derive  advantage  from  this  bequest  free  from  the 
excitement  which  clashing  doctrine  and  sectarian  con- 
troversy are  so  apt  to  produce.'  .  .  .  But  the  ob- 
jection itself  assumes  the  proposition  that  Christianity 
is  not  to  be  taught  because  ecclesiastics  are  not  to  be 
instructors  or  ofl&cers.  Why  may  not  la3-men  instruct 
in  the  general  principles  of  Christianity  as  well  as 
ecclesiastics  ?  There  is  no  restriction  as  to  the  religious 
opinions  of  the  instructors  or  officers — why  may  not 
the  Bible,  and  especiallj'  the  New  Testament,  without 
note  or  comment,  be  read  and  taught  as  a  divine  reve- 
lation, in  the  college,  its  general  precepts  expounded, 
its  evidences  explained,  and  its  glorious  principles  of 
morality  inculcated  ?  What  is  there  to  prevent  a  work, 
not  sectarian,  upon  the  general  evidences  of  Christianity 
from  being  read  and  taught  by  lay  teachers  ?  Certainly 
there  is  nothing  in  the  will  that  proscribes  such  studies. 
Above  all,  the  testator  positively  enjoins,  '  that  all  the 
instructors  and  teachers  in  the  college  shall  take  pains 
to  instill  into  the  minds  of  the  scholars  the  purest  prin- 
ciples of  morality,  so  that  on  their  entrance  into  active 
life  the}'  may,  from  inclination  and  habit,  evince  benev- 
olence towards  their  fellow-creatures,  and  a  love  for 
truth,  sobriety,  and  industry,  adopting,  at  the  same 
time,  such  religious  tenets  as  their  matured  reason  may 
enable  them  to  prefer.'  Now,  it  may  well  be  asked, 
what  is  there  in  all  this  which  is  positively  enjoined 
inconsistent  with  the  spirit  or  truth  of  Christianity? 
Are  not  these  truths  all  taught  by  Christianity,  al- 
though it  teaches  much  more  ?     Where  can  the  purest 


1 44  Legal  Decisions. 

principles  of  morality  be  learned  so  clearly  or  so  per- 
fectly as  from  the  New  Testament  ?  Where  are  benevo- 
lence, the  love  of  truth,  .sobriety,  and  industry  so 
powerfully  and  irresistibly  inculcated  as  in  the  sacred 
volume?  The  testator  has  not  said  how  these  great 
principles  are  to  be  taught,  or  by  whom,  except  it  be 
by  laymen  ;  nor  what  books  are  to  be  used  to  explain 
or  enforce  them.  All  that  we  can  gather  from  his  lan- 
guage is  that  he  desires  to  exclude  sectarians  and  sec- 
tarianism from  the  college,  leaving  the  instructors  and 
officers  free  to  teach  the  purest  morality,  the  love  of 
truth,  sobriety,  and  industry  by  all  proper  means,  and 
of  course  including  the  best,  the  surest,  and  the  most 
impressive.  We  are  satisfied  that  there  is  nothing  in 
the  devise  establishing  a  college,  nor  in  the  regulations 
and  restrictions  contained  therein,  which  are  inconsis- 
tent with  the  Christian  religion,  or  are  opposed  to  any 
known  policy  of  the  State  of  Pennsylvania. ' '  ' 

In  this  decision  it  is  expressly  asserted  that  Chris- 
tianity is  a  part  of  the  common  law  of  the  State  of 
Pennsylvania,  and  it  is  distinctly  implied  that  the 
Christian  religion  is  so  connected  with  our  civil  insti- 
tutions that,  if  the  will  in  question  had  required  any- 
thing to  be  taught,  or  if  there  had  been  anything  in 
the  regulations  and  restrictions  contained  therein  which 
was  inconsistent  with  the  Christian  religion,  the  devise 
would  not  have  been  protected  by  the  power  of  the 
United  States. 

In  the  case  of  Rector,  etc.,  of  Holy  Trinity  Church, 
V.  United  States,  on  "  Construction  of  Statutes," 
"Alien  Contract  Labor  Law,"  Mr.  Justice  Brewer, 
delivering  the  opinion  of  the  court,  said  :   "  .     .     .  But 

'  Reports  of  Decisiofis  in  the  Supreme  Courts  of  the  United 
States,  vol.  xv.,  2  ;  3  Howard,  pp.  83-87. 


Legal  Dc ci si 071S.  145 

beyond  all  these  matters,  no  purpose  of  action  against 
religion  can  be  imputed  to  any  legislation,  State  or 
National,  because  this  is  a  religious  people."  After 
reviewing  the  commission  to  Columbus,  the  colonial 
grants  and  charters,  various  State  constitutions,  the 
cases  of  Updegraph  v.  Commonwealth,  The  People  v. 
Ruggles,  and  Vidal  v.  Executors  of  Stephen  Girard,  as 
ofl&cial  declarations  of  the  fact  that  Christianity  is  part 
of  the  common  law,  he  says  :  "  If  we  pass  beyond  these 
matters  to  a  view  of  American  life,  as  expressed  by  its 
laws,  its  business,  its  customs,  and  its  society,  we  find 
everywhere  a  recognition  of  the  same  truth.  .  . 
These  and  many  other  matters  which  might  be  no- 
ticed, add  volumes  of  unofiicial  declarations  to  the 
mass  of  organic  utterances,  that  this  is  a  Christian  na- 
tion." The  summary  of  the  decision  is  in  part  as 
follows  : 

"4.  It  being  historically  true  that  the  American  peo- 
ple are  a  religious  people,  as  shown  by  the  religious  ob- 
jects expressed  in  the  original  grants  and  charters  of 
the  colonies,  and  the  recognition  of  religion  in  the  most 
solemn  acts  of  their  history,  as  well  as  in  the  Consti- 
tutions of  the  States  and  the  Nation,  the  courts,  in 
construing  statutes,  shoidd  not  impute  to  any  legisla- 
ture a  purpose  of  action  against  religion. 

"5.  Although  the  Alien  Contract  Labor  law  (23  St., 
p.  332)  prohibits  the  importation  of  '  any '  foreigners 
under  contract  to  perform  '  labor  or  service  of  any 
kind,'  yet  it  does  not  apply  to  one  who  comes  to  this 
country  under  contract  to  enter  the  service  of  a  church 
as  its  rector.     36  Fed.,  Rep,,  303.     Reversed."  ' 

'  Decision  rendered  February  29,  1892.  The  Supreme  Court 
Reporter,  vol.  xii.,  p.  511. 


146  Jefferson's  Argument. 

CHAPTER  X. 

JEFFERSON'S    ARGUMENT. 

Whii^E  the  great  legal  authorities  of  England  and 
the  United  States  agree  in  the  opinion  that  Christianity- 
is  a  part  of  the  common  law,  at  least  one  very  eminent 
man  has  held,  and  with  apparent  learning  has  endeav- 
ored to  maintain,  the  opposite  opinion. 

Mr.  Thomas  Jeiferson,  shortly  after  the  decision  of 
the  Supreme  Court  of  New  York  in  the  case  of  The 
People  V.  Ruggles,  and  of  the  Supreme  Court  of  Penn- 
sylvania in  the  case  of  Updegraph  v.  The  Common- 
wealth, wrote  a  letter  to  Major  John  Cartwright,  then  of 
London,  controverting  the  principles  laid  down  in  these 
decisions.  The  letter  is  dated  at  Monticello,  June  5, 
1824.  In  it  he  says  :  "  I  am  much  indebted  for  your 
kind  letter  of  February  29th,  and  for  your  valuable 
volume  on  the  English  Constitution.  ...  I  was 
glad  to  find  in  your  book  a  formal  contradiction  at 
length  of  the  judiciary  usurpation  of  legislative  pow- 
ers ;  for  such  the  judges  have  usurped  in  their  repeated 
decisions  that  Christianity  is  a  part  of  the  common 
law.  The  proof  of  the  contrary  which  you  have  ad- 
duced is  incontrovertible.  .  .  .  But  it  may  amuse 
you  to  learn  when  and  by  what  means  they  stole  this 
in  upon  us.  In  a  case  of  quare  impedit.  .  .  Here  I 
might  defy  the  best  read  lawyer  to  produce  one  scrip 
of  authority  for  this  judiciary  forgery  :  and  I  might  go 
on  further  to  show  how  some  of  the  Anglo-Saxon 
priests  interpolated  into  the  text  of  Alfred's  laws  the 
20th,  2ist,  22nd  and  23d  chapters  of  Exodus,  and  the 
15th  of  the  Acts  of  the  Apostles,  from  the  23d  to  the 
29th  verses.  But  this  would  lead  my  pen  and  your 
patience  too  far.     What  a  conspiracy  between  Church 


yeffersons  Argument.  147 

and  State  !  Sing  Tantarara,  rogues  all,  rogues  all. 
Tantarara,  rogues  all."  ' 

The  argument  of  this  letter,  revised  and  amplified, 
is  an  Appendix  to  Jefferson's  Reports  of  Cases  Deter- 
7nined  in  the  General  Court  of  Virginia  from  1730- 
174.0,  and  from  1768-1772  Published  at  Charlottes- 
ville, Va.,  by  F.  Carr  &  Co.  1829,  the  Appendix  hav- 
ing no  connection  whatever  with  the  subject-matter  of 
the  work  to  which  it  is  appended.     It  is  as  follows  : 

"  In  Quare  impedit  in  C.  B.  H.  6,  fo.  38,  the  defend- 
ant Bishop  of  Lincoln  pleads  that  the  church  of  the 
plaintiff  became  vacant  by  the  death  of  the  incumbent  ; 
that  the  plaintiff  and  I.  S.  each  pretending  a  right, 
presented  two  clerks  ;  that  the  church  being  thus  ren- 
dered litigious,  he  was  not  obliged  by  the  ecclesiastical 
law  to  admit  either  until  an  \\\Q^\s\\S.ovi.  de  jure patrona- 
tus  in  the  ecclesiastical  court ;  that  by  the  same  law 
this  inquisition  was  to  be  at  the  suit  of  either  claimant, 
and  was  not  ex-officio  to  be  instituted  by  the  Bishop 
and  at  his  proper  costs  ;  that  neither  party  had  desired 
such  an  inquisition  ;  that  six  months  passed,  wherein 
it  belonged  to  him  of  right  to  present,  as  on  a  lapse, 
which  he  had  done.  The  plaintiff  demurred.  A  ques- 
tion was,  how  far  the  ecclesiastical  law  was  to  be  re- 
spected in  this  matter  by  the  common  law  court.  And 
Prisot  (c.  5.)  in  the  course  of  his  argument  uses  this  ex- 
pression :  '  A  tels  leis  que  ils  de  seint  eglise  ont  en 
ancien  scripture,  covient  a  nous  a  donner  credence  ; 
car  ceo  common  ley  sur  quel  touts  manners  leis  sont 
fonde  s.  Et  auxy,  Sir,  nous  sumus  obliges  de  conustre 
loiu-  ley  de  saint  eglise  :  et  semblablement  ils  sont  obliges 
de  conustre  nostre  ley,  et,  Sir,  si  poit  apperer  or  a  nous 
que  I'evesque  ad  fait  come  un  Ordinary  fera  en  teil  cas, 
'^  Works,  vol.  vii.,  pp.  359-361. 


148  yeffersofts  Argument. 

adonq  nous  devous  ceo  adjurer  bon,  on  auterment 
nemy,'  etc.  It  does  not  appear  what  judgment  was 
given.  Y.  B.  ubi  supra  3.  c.  Fitzh.  Abr.  Qu.  imp.  89. 
Bro.  Abr.  Qu.  imp.  12.  Finch  mis-states  this  in  the 
following  manner  :  '  To  such  laws  of  the  church  as  have 
warrant  in  Holy  Scripture  our  law  giveth  credence,' 
and  cites  the  above  case  and  the  words  of  Prisot  in  the 
margin.  (Finch's  law.  B.  I.  c.  3.  published  1613.) 
Here  we  find  ancieti  scripture  converted  into  Holy  Scrip- 
ture, whereas  it  can  only  mean  the  ancient  written  laws 
of  the  church.  It  cannot  mean  the  Scriptures  :  ist. 
Because  the  term  ancient  scripture  must  then  be  under- 
stood as  meaning  the  Old  Testament  in  contra-distinc- 
tion  to  the  yV<?w,  and  to  the  exclusion  of  that,  which  would 
be  absurd  and  contrary  to  the  wish  of  those  who  cited 
this  passage  to  prove  that  the  scriptures,  or  Christianity, 
is  a  part  of  the  compion  law.  2nd.  Because  Prisot  says 
'  ceo  (est)  Common  ley  sur  quel  touts  manners  leis  sont 
fondes. '  Now  it  is  true  that  the  ecclesiastical  law,  so 
far  as  admitted  in  England,  derives  its  authority  from 
the  common  law.  But  it  would  not  be  true  that  the 
Scriptures  so  derive  their  authority,  3rd.  The  whole 
case  and  arguments  show  that  the  question  was,  how 
far  the  ecclesiastical  law  in  general  should  be  respected 
in  a  common  law  court.  And  in  Bro's  Abr.  of  this  case 
lyittleton  says,  'les  juges  del  Common  ley  prendra  con- 
usans  quid  est  lex  ecclesiae  vel  admiralitates  et  hujus 
modi  ?  '  4th.  Because  the  particular  part  of  the  ecclesi- 
astical law  then  in  question,  viz.  :  the  right  of  the 
patron  to  present  to  his  advowson,  was  not  founded  on 
the  law  of  God,  but  subject  to  the  modification  of  the 
law-giver,  and  so  could  not  introduce  any  such  general 
position  as  Finch  pretends.  Yet  Wingate  (in  1658) 
thinks  proper  to  erect  this  false  quotation  into  a  maxim 


yeffersoii  s  Argument.  149 

of  the  common  law,  expressing  it  in  the  very  words  of 
Finch  but  citing  Prisot.  Wingate,  Max.  3.  Next 
comes  Sheppard  (in  1675)  who  states  it  in  the  same 
words  of  Finch  and  quotes  Y.  B.,  Finch  and  Wingate. 
3.  Shep.  Arb.  tit.  Religion. 

' '  In  the  case  of  King  and  Taylor,  Sir  Matthew  Hale 
lays  it  down  in  these  words  :  '  Christianity  is  parcel  of 
the  laws  of  England.'  (I.  Ventr.  293.  3.  Keb.  607.) 
But  he  quotes  no  authority.  It  was  from  this  part  of 
the  supposed  common  law  that  he  derived  his  authority 
for  burning  witches.  So  strong  was  this  doctrine  be- 
come in  1728  by  additions  and  repetitions  from  one  an- 
other that  in  the  case  of  The  King  v.  Woolston  the  court 
would  not  suffer  it  to  be  debated,  whether  to  write 
against  Christianity  was  punishable  in  the  temporal 
courts  at  common  law,  saying  it  had  been  settled  in 
Taylor's  case,  ante,  2  stra.  834.  Therefore  Wood  in  his 
Institutes,  lays  it  down  that  all  blasphemy  and  profane- 
ness  are  offences  by  the  common  law,  and  cites  Strange, 
ubi  supra,  Wood,  409.  And  Blackstone  (about  1763) 
repeats,  in  the  words  of  Sir  Matthew  Hale,  that  '  Chris- 
tianity is  part  of  the  laws  of  England, '  citing  Ventr.  and 
Stra.  ubi  supra,  4.  Bl.  59.  I^ord  Mansfield  qualified  a 
little  by  saying,  in  the  case  of  the  Chamberlain  of  Lon- 
don V.  Evans,  1767,  that  '  The  essential  principles  of  re- 
vealed religion  are  part  of  the  common  law.'  But  he 
cites  no  authority  and  leaves  us  at  our  peril  to  find  out 
what  in  the  opinion  of  the  judge,  and  according  to  the 
measure  of  his  foot  or  his  faith,  are  those  essential -^xxwdX' 
pies  of  revealed  religion,  obligatory  on  us  as  a  part  of 
the  common  law.  Thus  we  find  this  string  of  authori- 
ties, when  examined  to  the  beginning,  all  hanging  on 
the  same  hook,  a  per\^erted  expression  of  Prisot's,  or  on 
nothing,  for  they  all  quote  Prisot,  or  one  another,  or 


1 5  o  yeffersons  Argument. 

nobody.  Thus  Finch  quotes  Prisot ;  Wingate  also  ; 
Sheppard  quotes  Prisot,  Finch,  and  "Wingate.  Hale 
cites  nobody  ;  the  court  in  Wollston's  case  cites  Hale. 
Wood  cites  Wollston's  case  ;  Blackstone  that  and  Hale  ; 
and  Lord  Mansfield,  like  Hale,  ventures  it  on  his  own 
authority.  In  the  earlier  ages  of  the  law,  as  in  the 
Year  Books,  for  instance,  we  do  not  expect  much  recur- 
rence to  authorities  by  the  judges,  because  in  those  days 
there  were  few  or  none  such  made  public.  But  in  later 
times  we  take  no  judge's  word  for  what  the  law  is  fur- 
ther than  he  is  warranted  by  the  authorities  he  appeals 
to.  His  decision  may  bind  the  unfortunate  individual 
who  happens  to  be  the  particular  subject  of  it,  but  it  can- 
not alter  the  law.  Although  the  common  law  be  termed 
the  Lex  non  scripta,  yet  the  same  Hale  tells  us  :  '  When 
I  call  those  parts  of  our  laws  Leges  no?i  seripto',  I  do 
not  mean  as  if  all  those  laws  were  only  oral,  or  com- 
municated from  the  former  ages  to  the  latter  merely  by 
word.  For  all  these  laws  have  their  several  monu- 
ments in  writing  whereby  they  are  transferred  from  one 
age  to  another,  and  without  which  they  would  soon 
lose  all  kind  of  certainty.  They  are  for  the  most  part 
extant  in  records  of  pleas,  proceedings  and  judgments, 
in  books  of  reports  and  judicial  decisions,  in  tractates 
of  learned  men's  arguments  and  opinions,  preserved 
from  ancient  times  and  extant  in  writing.'  (Hale's  Com- 
mon Law,  22.)  Authorities  for  what  is  common  law 
may,  therefore,  be  as  well  cited  as  for  any  part  of  the  lex 
scripta.  And  there  is  no  better  instance  of  the  necessity 
of  holding  the  judges  and  writers  to  a  declaration  of  their 
authorities  than  the  present,  where  we  detect  them  en- 
deavoring to  make  law  where  they  found  none  and  to 
submit  us,  at  one  stroke,  to  a  whole  system  no  particle 
of  which  has  its  foundation  in  common  law,  or  has  re- 


yeffersons  Argume7it.  i  5 1 

ceived  the  '  esto '  of  the  legislator.  For  we  know  that 
the  common  law  is  that  system  of  law  which  was  intro- 
duced by  the  Saxons  on  their  settlement  in  England,  and 
altered  from  time  to  time  hy  proper  legislative  authority 
from  that  to  the  date  of  the  Mag7ia  Charta,  which  termi- 
nates the  period  of  the  common  law  or  lex  non  scripta  and 
commences  that  of  the  statute  law  or  lex  scripta.  This 
settlement  took  place  about  the  middle  of  the  fifth  cen- 
tur}-,  the  conversion  of  the  first  Christian  king  of  the 
Heptarchy  having  taken  place  about  the  3-ear  598,  and 
that  of  the  last  about  686.  Here  then  was  a  space  of 
two  hundred  years  during  which  the  common  law  was 
in  existence  and  Christianity^  no  part  of  it.  If  it  ever, 
therefore,  was  adopted  into  the  common  law  it  must 
have  been  between  the  introduction  of  Christianity-  and 
the  date  of  the  MagJia  Charta.  But  of  the  laws  of  this 
period  we  have  a  tolerable  collection  by  Lambard  and 
Wilkins  ;  probably  not  perfect,  but  neither  vers*  defec- 
tive ;  and  if  any  one  chooses  to  build  a  doctrine  on  any 
law  of  that  period,  supposed  to  have  been  lost,  it  is  in- 
cumbent on  him  to  prove  it  to  have  existed  and  what 
were  its  contents.  These  were  so  far  alterations  of  the 
common  law  and  became  themselves  a  part  of  it,  but 
none  of  these  adopt  Christianity  as  a  part  of  the  com- 
mon law.  If  therefore  from  the  settlement  of  the  Sax- 
ons to  the  introduction  of  Christianity  among  them 
that  system  of  religion  could  not  be  a  part  of  the  common 
law,  because  they  were  not  5-et  Christians  ;  and  if  having 
their  laws  from  that  period  to  the  close  of  the  common 
law  we  are  able  to  find  among  them  no  such  act  of  adop- 
tion, we  maj'  safel}-  affirm  (though  contradicted  by  all 
the  judges  and  writers  on  earth)  that  Christianity 
neither  is  nor  ever  was  a  part  of  the  common  law. 
' '  Another  cogent  proof  of  this  truth  is  drawn  from  the 


1 5  2  yefferson  s  Argument. 

silence  of  certain  writers  on  the  common  law.  Bracton 
gives  us  a  very  complete  and  scientific  treatise  of  the 
whole  body  of  the  common  law.  He  wrote  this  about 
the  close  of  the  reign  of  Henry  III.,  a  very  few  years 
after  the  date  of  the  Magna  Charta.  We  consider  this 
book  as  the  more  valuable  as  it  was  written  about  the 
time  that  divides  the  common  and  statute  law  ;  and 
therefore  gives  us  the  former  in  its  ultimate  state.  Brac- 
ton too  was  an  ecclesiastic,  and  would  certainly  not  have 
failed  to  inform  us  of  the  adoption  of  Christianity  as  a 
part  of  the  common  law  had  any  such  adoption  ever 
taken  place.  But  no  word  of  his  which  indicates  any- 
thing like  it  has  ever  been  cited.  Fleta  and  Britton, 
who  wrote  in  the  succeeding  reign  of  K.  I.,  are  equally 
silent.  So  also  is  Glanvil,  an  earlier  writer  than  any 
of  them  ;  to  wit,  temp.  H.  2,  but  his  subject  might  not 
perhaps  have  led  him  to  mention  it.  It  was  reserved 
then  for  Finch  five  hundred  years  after  in  the  time  of 
Charles  II.  by  a  falsification  of  a  phrase  in  the  Year 
Book  to  open  this  new  doctrine,  and  for  his  successors 
to  have  joined  full  mouthed  in  the  cry,  and  give  to  the 
fiction  the  sound  of  fact.  Justice  Fortescue  Aland,  who 
professed  more  Saxon  learning  than  all  the  judges  and 
writers  before  mentioned  put  together,  places  this  sub- 
ject on  more  limited  ground.  Speaking  of  the  laws  of 
the  Saxon  kings  he  says  :  '  The  ten  commandments 
were  made  part  of  their  law,  and  consequently  were 
once  part  of  the  law  of  England  ;  so  that  to  break  any 
of  the  ten  commandments  was  then  esteemed  a  breach 
of  the  common  law  of  England,  and  why  it  is  not  so 
now  perhaps  it  may  be  difficult  to  give  a  good  reason.' 
(Preface  to  Fortescue' s  Reports,  xvii. )  The  good  reason 
is  found  in  the  denial  of  the  fact. 

"  Houard  in  his  Contumes  Anglo-Normandes  I.  87. 


ycffcrsons  Argument.  1 5  3 

notices  the  falsification  of  the  laws  of  Alfred,  by  pre- 
fixing to  them  four  chapters  of  the  Jewish  law,  to  wit, 
the  20th,  2ist,  22nd,  and  23rd  chapters  of  Exodus  ;  to 
which  he  might  have  added  the  15th  of  the  Acts  of  the 
Apostles,  verse  23  to  29,  and  precepts  from  other  parts 
of  the  scripture.  These  he  calls  Hors  d'oeuvre  of  some 
pious  copyist.  This  awkward  monkish  fabrication 
makes  the  preface  to  Alfred's  genuine  laws  stand  in 
the  body  of  the  work.  And  the  very  words  of  Alfred 
himself  prove  the  fraud,  for  he  declares  in  that  preface 
that  he  has  collected  these  laws  from  the  laws  of  Ina, 
of  Offa,  Aethelbert  and  his  ancestors,  saying  nothing 
of  any  of  them  being  taken  from  the  scripture.  It  is 
still  more  proved  by  the  inconsistencies  it  occasions. 
For  example,  the  Jewish  legislator,  Exodus  xxi,  12, 
13,  14,  (copied  by  thepseudo  Alfred  13)  makes  murder 
death.  But  Alfred  himself  1^1.  xxvi,  punishes  it  with 
a  fine  only,  called  a  weregild,  proportioned  to  the  con- 
dition of  the  person  killed.  It  is  remarkable  that  Hume 
(Appendix  I.  to  his  History),  examining  this  law  of 
Alfred  without  perceiving  the  fraud,  puzzles  himself 
with  accounting  for  the  inconsistency  it  had  intro- 
duced. To  strike  a  pregnant  woman  so  that  she  die 
is  death  by  Exodus  xxi,  22,  23,  and  Pseudo  Alfred 
S.  18,  but  by  the  LI.  Alfred  ix,  the  offender  pays  a 
weregild  for  both  the  woman  and  the  child.  To 
smite  out  an  eye  or  a  tooth.  Exodus  xxi,  24-27, 
Pseudo  Alfred  S.  19,  20,  if  of  a  servant  by  his  master 
is  freedom  to  the  servant ;  in  every  other  case  retalia- 
tion ;  but  by  Alfred  lyl.  xl,  a  fixed  indemnification  is 
paid.  Theft  of  an  ox  or  a  sheep  by  the  Jewish  law, 
Exodus  xxii,  I,  was  repaid  fivefold  for  the  ox  and 
fourfold  for  the  sheep  ;  but  by  Alfred  1,1.  xvi,  he  who 
stole  a  cow  and  calf  was  to  repay  the  worth  of  the 


154  yeffersons  Argument. 


cow  and  40  s.  for  the  calf.  Goring  by  an  ox  was 
the  death  of  the  ox,  and  the  flesh  was  not  to  be 
eaten,  Exodus  xxi,  28,  Pseudo  Alfred  S.  21.  By  LI. 
Alfred  xxiv  the  wounded  person  had  the  ox.  This 
Pseudograph  makes  municipal  laws  of  the  ten  com- 
mandments ;  S.  i-io  regulates  concubinage  ;  S.  12 
makes  it  death  to  strike,  or  to  curse  father  or  mother ; 
S.  14,  15  give  an  eye  for  an  eye,  tooth  for  tooth,  hand 
for  hand,  foot  for  foot,  burning  for  burning,  wound  for 
wound,  stripe  for  stripe  ;  S.  19  sells  the  thief  to  repay 
his  theft ;  S.  24  obliges  the  fornicator  to  marry  the 
woman  he  has  lain  with  ;  S.  29  forbids  interest  on 
money  ;  S.  28,  35  make  the  laws  of  bailment,  and  very 
different  from  what  Lord  Holt  delivers  in  Coggs  v. 
Bernard,  and  what  Sir  William  Jones  tells  us  they 
were ;  and  punishes  witchcraft  with  death,  S.  30, 
which  Sir  Matthew  Hale  I.  P.  C.  cli.  33,  declares  was 
not  a  felony  before  the  stat.  I.  Jac.  c.  12.  It  was  under 
that  statute  he  hung  Rose  Callender  and  Amy  Duny  16. 
Car.  2.  (i  662)  on  whose  trial  he  declared  that  there  were 
such  creatures  as  witches,  he  made  no  doubt  at  all ; 
for,  first,  the  scriptures  had  affirmed  so  much  ;  second, 
the  wisdom  of  all  nations  had  provided  laws  against 
such  persons,  .  .  .  and  such  hath  been  the  judg- 
ment of  this  kingdom,  as  appears  by  that  act  of  parlia- 
ment which  hath  provided  punishments  proportionable 
to  the  quality  of  the  offence.  And  we  must  certainly 
allow  greater  weight  to  this  position,  '  that  it  was  no 
felony  till  James'  statutes '  deliberately  laid  down  in 
his  H.  P.  C,  a  work  which  he  wrote  to  be  printed  and 
transcribed  in  his  lifetime,  than  to  the  hasty  scripfum, 
that  '  At  common  law  witchcraft  was  punished  with 
death  as  heresy,  by  writ  de  heretico  aviiburendo '  in  his 
methodical  summary  of  the  P.  C.  p.  6  ;  a  work  '  not 


ycffcrsons  Argumetd.  155 

intended  for  the  press,  nor  fitted  for  it,  and  which  he 
declared  he  had  never  read  over  since  it  was  written.' 
Preface.  Unless  we  understand  his  meaning  in  that 
to  be  that  witchcraft  could  not  be  punished  at  common 
law  as  witchcraft,  but  as  heresy.  In  either  sense  how- 
ever it  is  a  denial  of  this  pretended  law  of  Alfred. 
Now  all  men  of  reading  know  that  these  pretended  laws 
of  homicide,  concubinage,  theft,  retaliation,  compulsory 
marriage,  usiu^%  bailment,  and  others  which  might 
have  been  cited  from  this  pseudograph  were  never  the 
laws  of  England,  not  even  in  Alfred's  time  ;  and  of 
course  that  it  is  a  forger}-.  Yet,  palpable  as  it  must 
be  to  a  lawyer,  our  judges  have  piously  avoided  lifting 
the  veil  under  which  it  was  shrouded.  In  truth,  the 
alliance  between  Church  and  State  in  England  has  ever 
made  their  judges  accomplices  in  the  fi'auds  of  the 
clergy,  and  even  bolder  than  they  are,  for  instead  of 
being  content  with  the  surreptitious  introduction  of 
these  four  chapters  of  Exodus,  they  have  taken  the 
w-hole  leap,  and  declared  at  once  that  the  whole  Bible 
and  Testament  in  a  lump  make  a  part  of  the  common 
law  of  the  land,  the  first  judicial  declaration  of  w^hich 
was  by  this  Sir  Matthew  Hale.  And  thus  they  incor- 
porate into  the  English  code  laws  made  for  the  Jews 
alone,  and  the  precepts  of  the  gospel,  intended  by  their 
benevolent  author  as  obligatory  onl}^  in  foro  conscicntice, 
and  they  arm  the  whole  with  the  coercions  of  municipal 
law.  They  do  this  too,  in  a  case  where  the  question 
was  not  at  all,  whether  Christianity  was  a  part  of  the 
law  of  England,  but  simpl}^  how  far  the  ecclesiastical 
law  was  to  be  respected  by  the  common  law  courts  of 
England,  in  the  special  case  of  a  right  of  presentment ; 
thus  identifying  Christianity  with  the  ecclesiastical  law 
of  England."  '  Th.  Jefferson. 

'  Jeflfersou's  Reports,  Appendix,  pp  137-142. 


156  Clayton* s  Answer  to  yefferson. 

Clayton's  Answer. — Chief-Justice  Clayton,  of  Dela- 
ware, in  the  decision  in  the  case  of  the  State  v.  Chand- 
ler, November,  1837,  already  referred  to,  makes  the 
following  reply  to  the  argument  of  Mr.  Jefferson  : 

"  The  defendent's  counsel  in  the  progress  of  the  ar- 
gument on  this  subject  referred  to  a  letter  written  by 
Thomas  Jefferson  to  Major  Cartwright,  dated  June  5, 
1824,  and  published  in  the  fourth  volume  of  his  post- 
humus  works.  This  letter  we  notice  because  respecta- 
ble counsel  have  cited  it.  It  is  phrased  in  terms  more 
becoming  to  the  newspaper  paragraphs  of  the  day  than 
the  opinion  of  a  grave  jurist  who  feels  respect  for  the 
memory  of  the  eminent  lawyers  of  England,  because 
he  knows  and  can  appreciate  their  worth.  The  opin- 
ion of  Lord  Mansfield,  who  was  one  of  the  brightest 
luminaries  of  the  common  law,  palpably  misunderstood 
by  this  writer,  is  by  him  denounced  as  a  '  judicial  forg- 
ery. '  He  considers,  and  so  states,  that  by  this  maxim 
mentioned  by  I/)rd  Mansfield  which  recognizes  revealed 
religion  as  a  part  of  the  common  law,  his  lordship  has 
'  engulped  Bible,  Testament  and  all  into  the  common 
law '  ;  whereas  this  mode  of  garbling  a  remark  and  then 
replying  to  it  has  done  gross  injustice  to  that  great 
man,  whose  celebrated  argument  for  religious  toleration 
in  the  English  house  of  lords  in  the  case  of  Evans, 
does  by  no  means  justify  the  imputation  cast  upon  him. 
So  far  from  meaning  that  Bible  and  Testament  were 
part  of  the  common  law  for  other  purposes  than  that 
of  punishing  subversion,  reviling  and  ridiculing  them  ; 
so  far  from  pretending  that  any  man  could  be  punished 
by  the  common  law  for  mere  infidelity  or  for  worship- 
ping God  as  he  pleases,  or  for  any  violation  of  any  di- 
vine precept,  not  expressly  adopted  by  man  as  human 
law,  which  would  make  courts  and  juries  the  regula- 


Claytons  Answer  to  yefferson.  157 

tors  of  every  man's  conscience,  Lord  Mansfield  ex- 
pressl}^  says  :  '  Conscience  is  not  controllable  by  human 
laws,  nor  amendable  to  human  tribunals.  Persecution 
or  attempts  to  force  conscience  will  never  produce  con- 
viction, and  are  only  calculated  to  make  hypocrites  or 
martyrs. '  '  There  is  nothing, '  he  adds,  '  more  unrea- 
sonable, more  contrary  to  the  spirit  and  precept  of  the 
Christian  religion,  more  iniquitous  or  unjust,  more 
impolitic,  than  persecution.  It  is  against  natural  reli- 
gion, revealed  religion,  and  sound  policy.' 

"  Mr.  Jefferson  endeavors  to  show  that  the  maxim 
that  Christianity  is  a  part  of  the  common  law  of  Eng- 
land is  entirely  derived  from  an  opinion  of  Prisot  in  the 
Year  Book,  34  H.,  6,  folio  38.,  (145-8).  In  a  case  quare 
impedit  a  question  was  made,  how  far  the  ecclesiastical 
law  was  to  be  respected  in  a  common  law  court,  and 
Prisot  gives  his  opinion  in  these  words  :  '  Prisot  .  .  . 
a  tiels  I>ys.  .  .  .'  The  whole  of  Mr.  Jefferson's 
complaint  is  that  Finch  has  mistaken  this  passage  by 
translating  '' atuicient  scripture,''  holy  scripture.  Mr. 
Jefferson  translates  Priscot's  Norman  French  so  as  to 
make  him  decide  '  that  to  such  laws  of  holy  church  as 
have  warrant  in  ancient  writing,  it  is  proper  for  us  to 
give  credence '  ;  while,  says  he.  Finch  interprets  the 
passage,  '  to  such  laws  of  the  church  as  have  warrant 
in  holy  scripture  our  law  giveth  credence. '  Now  the 
question  which  the  judge  was  considering,  when  he  de- 
livered this  opinion,  was,  whether  the  sentence  of  the 
bishop  or  ecclesiastical  court  should  have  faith  and 
credit  at  common  law.  He  made  the  same  decision 
which  was  afterwards  made  in  11  H.,  7,  9,  and  again 
in  Caudrey's  case  reported  in  Sir  Edward  Coke,  5  Rep. 
I.  In  Caudrey's  case,  'it  was  resolved  by  the  whole 
court  that  the  sentence  given  by  the  Bishop  by  the  con- 


158  Claytons  Answer  to  yeffcrson. 

sent  of  his  colleagues  was  such  as  the  judges  of  the 
common  law  ought  to  allow  to  be  given,  according  to 
the  ecclesiastical  laws  :  for  seeing  that  their  authority 
is  to  proceed  and  give  sentence  in  a  cause  ecclesiastical, 
upon  their  proceedings  by  force  of  that  law,  the  judge 
of  the  common  taxu  ought  to  give  faith  and  credit  to  tlicir 
sentence  and  to  allow  it  to  be  done  accordi7ig  to  the  ecclesi- 
astical law.  For  Cuilibet  in  siia  arte  perito  credendum 
est.  '  And  this, '  says  I^ord  Coke,  '  is  the  common 
received  opinion  of  all  our  books '  ;  for  which  he  then 
cites  the  very  case,  34  H.,  6,  14,  where  the  opinion  is 
given  by  Prisot.  The  point  decided  was  the  legal  prin- 
ciple that  the  sentence  of  a  competent  court,  of  exclu- 
sive and  peculiar  jurisdiction,  is  conclusive,  where  that 
sentence  comes  incidentally  in  question  in  another  court. 
The  judge  therefore  concluded  that  '  If  it  should  ap- 
pear to  us  (the  common  law  judges)  that  the  Bishop 
has  done  as  an  ordinary  may  do  in  such  a  case  (that  is, 
has  not  exceeded  his  jurisdiction)  then  we  ought  to  ad- 
judge these  good  or  otherwise.'  According  to  what 
Mr.  Jefferson  calls  Finch's  interpretation,  the  judges 
decided  that  the  sentence  of  the  ecclesiastical  tribunal 
when  warranted  by  the  holy  scriptures  shall  be  credited 
in  a  common  law  court  as  the  decision  of  a  competent 
tribunal,  provided  the  ecclesiastical  tribunal  did  not  ex- 
ceed its  jurisdiction.  According  to  Mr.  Jefferson's  ver- 
sion, the  judges  decided  that  the  same  sentence  when 
warranted  by  '  the  ancient  written  laws '  should  be  so 
acknowledged  and  credited.  What  these  written  laws 
were  Mr.  Jefferson  does  not  inform  us  ;  but  the  common 
law  was  emphatically  the  lex  non  scripta  or  unwritten 
law,  as  contra-distinguished  from  the  statute  law,  and 
Mr.  Jefferson  probably  knew  that ;  he  must  have  in- 
tended either  statutes  of  parliament  or  the  written  laws 


Claytons  Answer  to  yefferson.  i  59 

of  the  church.  The  statutes  of  parliament  could  not 
have  been  intended,  for  they  did  not  regulate  the  eccle- 
siastical jurisdiction  ;  and  the  words  '  car  ceo  est  common 
ley  sur  que  ionts  manner  leys  sontfondens '  when  applied 
to  them  would  be  nonsense.  For  how  could  they  be 
said  to  be  the  foundation  of  all  human  laws.  If  by 
written  laws  Mr.  Jefferson  meant  the  written  laws  of 
the  church  at  that  day,  they  at  that  day  credited  the 
holy  vScriptures  and  professed  to  be  built  upon  them. 
The  ecclesiastical  tribiinals,  as  we  know  from  Caudrey's 
case,  assumed  jurisdiction  of  all  offences  purely  against 
God  and  the  Holy  Scriptures,  pro  salute  animce^  with- 
out reference  to  the  mere  effect  of  such  offences  on 
the  peace  of  society,  which  the  common  law  never 
did.  But  the  common  law  judges,  by  yielding  up  that 
jurisdiction  to  the  ecclesiastical  courts,  refusing  to  re- 
verse or  revise  their  decisions  when  incidently  or  col- 
laterally presented  in  a  common  law  court,  thus  simply 
recognizing  those  decisions  as  ecclesiastical  and  not  as 
common  law,  did  no  more  intend  by  that  to  acknowl- 
edge the  laws  of  holy  church  as  common  law,  than  they 
intended  to  acknowledge  admiralty  law  as  common  law 
when  they  gave  faith  and  credit  to  an  admiralty  de- 
cision. 

"  It  is  not  within  our  knowledge  that  any  common 
law  judge  has  cited  the  case  in  the  Year  Book  or  referred 
to  it  in  any  manner,  to  prove  his  opinion  in  citing  a 
case  of  blasphemy,  with  the  malicious  reviling  of  Chris- 
tianity, was  punishable  at  common  law.  The  labor 
with  which  Mr.  Jefferson  has  searched  the  Year  Book 
to  convict  Finch  of  a  mistranslation  would  have  been 
saved  had  he  been  aware  that  he  was  only  proving,  by 
his  own  construction  of  the  passage,  that  the  ecclesias- 
tical law  was  founded  in  the  written  laws  of  the  church. 


1 6o  Clayton  s  A  nswer  to  yefferson. 


and  not  in  the  scriptures  alone.  As  friends  of  religious 
liberty,  we  would  prefer  that  the  common  law  should 
have  '  engulphed  Bible  and  Testament '  rather  than 
the  laws  of  the  church,  as  understood  at  that  day, 
which  not  only  professed  to  comprise  the  Bible  and 
Testament,  but  usurped  entire  control  over  the  con- 
sciences of  men,  or  burnt  the  body  under  pretext  of 
saving  the  soul. 

"Having  thus  seen  Mr.  Jefferson's  premises,  let  us 
next  consider  the  argument  built  upon  them  to  convict 
Mansfield  of  judicial  forgery.  He  says  that  Hale  de- 
cided that  Christianity  was  parcel  of  the  laws  of  Eng- 
land, but  quoted  no  authority  ;  that  by  such  echoings 
and  re-echoings  from  one  to  another,  in  1728,  the  court 
(composed  of lyord  C.  J.  Raymond,  and  Page,  Reynolds, 
and  Probyn,  justices)  in  the  case  of  the  King  v.  Wool- 
ston,  for  blasphemy,  2  Str.,  834,  would  not  suffer  it  to  be 
debated  whether  writing  against  Christianity  in  general 
was  punishable  in  the  temporal  courts  at  common  law  ; 
that  Justice  Blackstone  adopts  Hale's  opinion  and  cites 
the  adjudged  cases  ;  and  finally,  that  Lord  Mansfield 
had  used  the  words  before  quoted  as  delivered  by  him 
in  Evans'  case,  '  that  the  essential  parts  of  revealed 
religion  are  parts  of  the  common  law,'  thus,  says 
Mr.  Jefferson,  engulfing  Bible,  Testament,  and  all 
into  the  common  law  without  citing  any  authority. 
'  And  thus  far, '  he  adds,  '  we  find  this  chain  of  au- 
thorities hanging  link  by  link  one  upon  another,  a7id 
all  ultimately  upon  one  and  the  same  book  \]iook  .^]  a7id 
that  a  mistranslation  of  the  words  auncient  scripture  used 
by  Prisot.'  He  concludes  that  he  '  might  defy  the 
best  read  lawyer  to  produce  another  scrip  of  authority 
for  this  judicial  forgery.'  This  letter-writer  then  first 
admits  expressly  that  neither  Hale  nor  Mansfield  had 


Clayton  s  Answer  to  yefferson.  1 6  r 

cited  any  authority'  for  their  opinions,  and  immediately 
after  charges  the  principles  for  which  their  great  names 
are  cited  with  hanging  on  what  he  calls  a  mistransla- 
tion of  the  words  of  Prisot.  He  thought  that  his  eru- 
dition had  enabled  him  to  detect  the  ver>'  source  from 
which  their  ignorance  and  folly,  or  their  knavery,  had 
sprung.  Had  Hale  or  Mansfield  quoted  the  passage 
from  Prisot  which  Mr.  Jefferson  has  thus  plumed  him- 
self on  the  translation  of,  as  the  foundation  for  a  judi- 
cial opinion,  then  they  would  have  been  responsible 
for  the  translation  of  the  passage,  but  neither  of  them 
quoted  the  Year  Book  ;  they  had  no  occasion  to  quote 
any  authority.  Long  before  Lord  Hale  decided  that 
Christianity  was  a  part  of  the  laws  of  England,  the 
Court  of  King's  Bench,  34  Eliz.,  in  Ratcliflf's  case,  3 
Coke  Rep.,  40  b.,  had  gone  so  far  as  to  declare  that 
'  in  almost  all  cases  the  common  law  was  grounded 
on  the  law  of  God  which  it  was  said  was  the  causa 
causans,'  and  the  court  cited  the  27th  chapter  of  Num- 
bers to  show  that  their  judgment  on  a  common  law 
principle  in  regard  to  the  law  of  inheritance  was 
founded  on  God's  revelation  of  that  law  to  Moses, 
Mr.  Hargrave,  in  his  note  on  Co.  Lit.  11  b..  observ'es 
that  '  this  inference  from  God's  precepts  to  Moses  is 
unwarranted,  unless  it  can  be  shown  that  it  was  pro- 
mulgated as  a  law  for  mankind  in  general,  instead  of 
being  like  many  other  parts  of  the  Mosaical  law,  a 
rule  for  the  direction  of  the  Jewish  nation  only.'  The 
author  of  the  reports  and  the  commentary  on  Littleton 
was  a  professor  of  Christianity,  as  is  visible  in  all  his 
writings.  That  Hale,  with  such  an  authority  before 
him,  should  have  deemed  it  necessary-  to  cite  Coke, 
familiar  as  his  writings  were  to  the  profession  at  a  time 
when  his  works  were  the  principal  text-book  of  everj- 


1 62  Clay  toil  s  Anszvev  to  yefferson. 

lawyer,  cannot  be  the  subject  of  much  wonder ;  and 
we  know,  notwithstanding  Mr.  Jefferson's  defiance, 
that  even  Finch  himself  quoted  8  H.,  8,  '  Ley  de  Dieu 
est  Ley  de  terre ' — the  law  of  God  is  the  law  of  the  land. 
Doc.  and  Stud.,  lib.  i.,  c.  6.  Plowd,  265,  to  sustain  his 
position  that  the  holy  scripture  is  of  sovereign  author- 
ity, and  to  show  the  extent  and  meaning  of  the  maxim. 
But  independent  of  Lord  Coke,  or  any  other  judge.  Sir 
Matthew  Hale  was  an  authority  of  himself,  and  is  con- 
sidered as  a  sufficient  authority  for  a  common  law  prin- 
ciple in  every  case  when  there  is  no  contrary  authority. 
What  sources  of  legal  knowledge  his  great  erudition 
may  have  consulted  on  this  subject,  we  have  no  means 
of  certainly  knowing,  nor  is  it  necessary  to  inquire. 

"  As  for  the  alleged  translation  of  Finch,  we  have  ex- 
amined the  whole  passage  and  are  well  satisfied  that 
if  Finch  construed  '  auncient  scripture '  to  mean  holy 
scripture,  such  a  translation  of  the  Norman  French  would 
be  the  true  translation.  But  in  fact  Finch  has  not  ven- 
tured any  translation  of  the  passage  whatever,  notwith- 
standing Mr.  Jefferson  professes  to  copy  the  very  words 
in  which  he  has  translated  it.  We  speak  with  the 
work  of  Henry  Finch  of  Gray's  Inn,  book  i,  chapter 
iii.,  published  in  London,  1759,  before  us.  Mr.  Jeffer- 
son has  made  a  translation  for  Finch  in  words  with 
inverted  commas,  then  attempted  to  prove  his  transla- 
tion false,  and  failed  to  do  it.  Finch  evidently  believed 
that  Prisot  spoke  of  the  holy  scripture,  and  therefore 
cited  the  Year  Book,  with  other  authorities,  to  sustain 
a  general  position  in  the  text,  that  the  scriptures  were 
of  sovereign  authority, — a  position  which,  like  that  of 
every  other  compiler,  was  good  to  the  full  extent  of 
his  authority,  and  no  further  ;  and  it  is  sustained  by 
the  Year  Book  so  far  as  to  show  that  the  common  law 


^ 


Clayton  s  Answer  to  Jefferson.  163 

did  recognize  the  decisions  of  ecclesiastical  courts 
which  were  founded  on  the  scriptures  as  co?icliisive 
when  brought  collaterally  in  question  in  a  comvion  taw 
court.  Lord  Mansfield's  judicial  forgery  stood,  as  the 
cases  we  have  cited  prove,  upon  other  and  many  other 
authorities  than  Mr.  Jefferson  appears  ever  to  have 
read."  ' 


CHAPTER  XI. 

THE    TREATY    WITH    TRIPOLI. 

Article  XI.  of  the  Treaty  with  Tripoli,  ratified  by 
the  United  States,  February  10,  1797,  is  as  follows  : 

' '  As  the  government  of  the  United  States  of  America 
is  not,  in  any  sense,  founded  on  the  Christian  religion  ; 
as  it  has  in  itself  no  character  of  enmity  against  the 
laws,  religion,  or  tranquillity  of  Musselmen  ;  and  as  the 
said  States  never  have  entered  into  any  war  or  act  of 
hostility  against  any  Mahometan  nation,  it  is  declared 
by  the  parties  that  no  pretext  arising  from  religious 
opinion  shall  ever  produce  an  interruption  of  the  har- 
mony existing  between  the  two  countries. ' ' 

The  Constitution  of  the  United  States,  Article  VI., 
declares  that  "All  Treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  shall 
be  the  supreme  law  of  the  land,  and  the  judges  in  every 
State  shall  be  bound  thereby. ' ' 

There  can  be  no  doubt  that  the  stipulations  of  a 
treat}'-  have  the  character  of  a  supreme  law,  but  nobody 
pretends  that  all  the  arguments  tised  therein  have  such 
a  character.  The  first  clause  of  Article  XI.  in  this 
Treaty  alleges  a  supposed  fact  as  an  argument,  bearing 
'  2  Harrington,  pp.  558-562. 


1 64  The  Treaty  with  Tripoli. 

upon  a  conclusion,  afterwards  stated,  and  has  no  more 
than  an  argumentative  force.  That  allegation  has  been 
regarded  as  of  so  little  authority  that  a  majority  of  the 
courts  which  have  been  called  upon  to  adjudicate  on 
the  question,  whether  "  The  government  of  the  United 
States  of  America  is,  in  any  sense  founded,  on  the 
Christian  religion,"  do  not  even  mention  it. 

Furthermore,  whatever  may  have  been  the  authority 
of  that  Treaty,  it  was  superseded  by  the  Treaty  of  June 
4,  18 15,  in  which  the  clause  in  question  is  omitted. 
Article  XIV.  of  that  Treaty  is  as  follows  : 

' '  As  the  government  of  the  United  States  of  America 
has  in  itself  no  character  of  'enmity  against  the  laws, 
religion,  or  tranquillity  of  Musselmen,"  etc. 

This  omission  in  the  second  Treaty  of  the  statement 
made  in  the  first,  that  "  The  government  of  the  United 
States  of  America  is  not,  in  any  sense,  founded  on  the 
Christian  religion,"  may  fairly  be  construed  as  a  re- 
traction of  that  statement,  and  as  an  authoritative 
denial  of  its  truth.  Such  construction  is  especially 
warranted  by  the  fact  that  Chancellor  Kent  had  ren- 
dered his  famous  decision  in  the  case  of  People  v.  Rug- 
gles  only  three  years  before  the  negotiation  of  this 
treaty. 

In  summing  up  the  results  of  this  part  of  our  inves- 
tigation we  may  take  it  as  established,  by  the  charters 
and  acts  of  the  colonies,  by  the  constitutions  and  acts 
of  the  States,  by  the  intent,  and  the  temporary  force,  of 
the  Ordinance  of  1787,  by  the  necesssities  of  the  case 
as  expressed  in  the  common  law,  by  the  principles  of 
equity,  by  the  decisions  of  the  Supreme  Courts  of  the 
States,  and  by  the  decisions  of  the  Supreme  Court  of 
the  United  States,  that  the  civil  institutions  of  this  land 
are  necessarily,  legally,  and  rightly  Christian. 


^ 


PART  III. 

A  question  of  theory'.  What  ought  to  be  the  relation  of  the 
Christian  religion  to  the  civil  government,  in  the  United 
States  ? 


165 


I 


CHAPTER  I. 

ANTIQUATED    THEORIES. 

The  large  amount  of  thought  which  men  in  all  times 
have  been  compelled  to  bestow  upon  the  subject  under 
consideration,  together  with  the  native  impulse  of  the 
human  mind  to  find  a  principle  whereby  individual 
facts  may  be  brought  into  a  comprehensive  imit^',  has 
very  naturally  led  to  the  formation  of  various  theories 
of  the  State  and  the  Church,  and  of  the  relation  of  each 
to  the  other. 

ist.  The  first  we  shall  mention  may  be  called  the  Med- 
iaeval Ecclesiastical  Theon-.  According  to  this  theory 
the  civil  organization  is  comprehended  in  the  Church. 
The  temporal  powers  derive  their  authority'  from  the 
Church  and  are  responsible  to  it.  Pope  Gregor}-  VII., 
the  illustrious  reformer  of  his  time,  who  made  the 
first  distinct  enunciation  of  theory'  and  the  first  demand 
for  its  universal  acceptance,  compared  the  Church  to 
the  sun,  and  the  State  to  the  moon,  and  contended  that 
as  the  moon  is  subject  to  the  sun,  and  shines  onlj-  with 
a  light  derived  from  the  sun,  so  the  State  is  subject  to 
the  Chtu-ch,  and  derives  all  its  powers  from  the  Church. 
He  likened  the  temporal  and  spiritual  powers  belong- 
ing to  the  Church  to  the  two  eyes  belonging  to  one 
head.  The  commission  our  Lord  gave  to  his  disciples, 
to  go  into  all  the  world  and  teach  all  nations  to  observe 

167 


1 68  Medicsval  Ecclesiastical  Theory. 

all  things  whatsoever  he  had  commanded  them,  was 
interpreted  as  establishing  but  one  authority  in  the 
world, — the  authority  of  Christ,  which  was  to  be  ex- 
ercised by  his  representatives.  His  expression,  "  It  is 
enough,"  when  in  answer  to  his  direction  "He  that 
hath  no  sword  let  him  sell  his  garment  and  buy  one," 
they  said  * '  I^ord,  behold  here  are  two  swords, ' '  was 
interpreted  as  meaning  that  two  swords  were  sufficient 
for  all  the  purposes  of  His  kingdom  on  earth  ;  the  one 
being  the  symbol  of  the  spiritual,  and  the  other  the 
symbol  of  the  temporal  power.  It  was  assumed  that 
he  delivered  both  swords  to  Peter,  and  that  Peter  de- 
livered them  into  the  hands  of  his  successors  in  the 
primacy,  the  bishops  of  Rome.  If  the  sword  of  the 
temporal  power  is  found  in  the  hands  of  civil  rulers,  it 
has  been  placed  there  by  the  supreme  pontiff.  They 
hold  it  at  his  will  and  are  to  be  responsible  to  him  for 
all  the  use  they  make  of  it.  An}-  temporal  power  that 
is  independent  of  the  Church  is  to  be  regarded  as  an 
usurpation  established  by  violence  and  maintained  by 
iniquity,  the  fruit  of  which  cannot  be  otherwise  than 
evil. 

This  theory  was  not  conceived  and  promulgated  in 
its  full  form  at  any  particular  date.  It  was  the  result 
of  the  interaction  of  all  historical  forces,  social,  politi- 
cal, and  religious,  throughout  a  long  period  ;  from  the 
time  of  Pope  Zacharias  (752),  or  before  till  the  time  of 
Pope  Boniface  VIII.  (1303),  a  period  of  nearly  six  hun- 
dred years.  It  was  not  the  fabrication  of  any  particular 
man,  but  was  rather  a  growth.  Neither  was  it  like  the 
mould,  a  growth  from  corruption.  It  was  rather  in  its 
beginning  like  the  mustard  seed,  the  smallest  of  all 
seeds,  which  became  a  great  tree  wherein  the  fowls  of 
the  air  lodged.     It  derived  its  life  from  the  highest  con- 


Antiqjiated  Theories.  169 

ception  of  the  mission  of  the  Church,  the  noblest  aims 
and  the  purest  intentions.  The  times  seemed  to  have 
prepared  the  way  for  it,  and  the  voice  of  God,  in  his 
providence,  seemed  to  be  calling  the  Church  to  enter 
upon  her  high  mission.  The  evils  following  upon  the 
dissolution  of  the  Roman  empire  were  appalling.  The 
temporal  powers  in  their  weakness,  distraction,  and  bar- 
barism, seemed  to  aggravate  rather  than  cure  these  evils. 
The  Church  seemed  to  be  endowed  with  all  the  powers 
necessary  to  bring  in  a  universal  reign  of  righteousness 
and  peace.  The  temporal  powers  were  divided  ;  the 
Church  was  united  ;  the  temporal  powers  were  weak, 
patriotism  being  almost  extinct,  tribes  and  nations 
being  little  else  than  marauding  hordes.  The  Church 
was  strong,  deriving  its  strength  from  the  religious 
sentiments  and  the  superstitious  fears  of  the  people, 
which  at  the  time  exerted  a  powerful  influence  upon 
the  conduct  of  men  ;  and  its  power  seemed  to  be  all 
pervasive,  penetrating  all  the  nations  of  Europe.  Why 
should  she  not  avail  herself  of  the  opportunity  thus 
offered  to  realize  the  highest  conception  of  her  charac- 
ter, and  fulfil  her  appointed  mission  in  the  world  ?  It 
is  no  matter  of  wonder  that  Pope  Zacharias,  by  his 
legate,  anointed  and  crowned  Pepin  le  Bref,  King  of 
the  Franks  (752)  ;  that  Leo  III.  placed  the  imperial 
crown  on  the  head  of  Charles  the  Great,  bestowed  on 
him  the  title  of  ' '  Augustus  Emperor, ' '  and  upon  his 
kingdom  the  title  of  "  The  Holy  Roman  Empire" 
(800)  ;  that  Hadrian  II.  when  I,othair,  king  of  I,otha- 
ringia,  died  without  issue,  bestowed  the  crown  upon 
lyouis,  in  preference  to  his  brother  Charles  the  Bald, 
who  had  seized  the  kingdom  ;  that  Pope  John  VIII. 
five  years  later  bestowed  the  imperial  crown  upon 
Charles  (875)  ;  that  John  XII.  anointed  Otho  I.  of  Ger- 


I  70         Medicsval  Ecclesiastical  Theory. 

many  as  emperor  (962)  ;  that  Gregory  VII.  excommu- 
nicated and  deposed  Henry  IV.,  emperor  of  Germany, 
and  compelled  him  to  stand  without  the  castle  gates  of 
Canossa,  bareheaded  and  clothed  with  hair  cloth,  ex- 
posed for  three  days  in  January  to  the  inclemency  of 
the  weather,  before  he  would  remove  the  ban  of  excom- 
munication (1076)  ;  and  that  Innocent  III.  deposed  John 
(Lackland)  King  of  England  and  gave  his  kingdom  to 
Philip  II.,  Augustus  of  France  (121 3). 

This  theor}^,  plausible  as  it  was  at  the  time,  was 
never  without  its  opponents.  Many  learned  and  able 
men  asserted  the  divine  ordinance  both  of  Church  and 
State,  and  maintained  that  each  was  independent  of 
the  other  in  its  own  sphere.  Political  complications 
tended  constantly  to  keep  up  and  strengthen  this  op- 
position. The  popes  who  attempted  to  carry  out  the 
theory  were  in  perpetual  conflict  with  the  political 
powers,  and  often  also  with  the  clergy  residing  in  the 
territory  of  the  opposing  powers.  The  theory  was 
afiirmed  in  its  fullest  form  and  its  acceptance  demanded 
in  the  most  peremptory  manner  by  Boniface  VIII.  in 
his  quarrel  with  Philip  IV.,  the  Fair,  of  France.  The 
Pope  sent  haughty  letters  to  the  King,  in  which  he  as- 
serted that  the  kings  of  France,  with  all  other  kings 
and  princes  whatsoever,  were  obliged  by  a  divine  com- 
mand to  submit  to  the  authority  of  the  popes,  as  well 
in  all  political  and  civil  matters,  as  in  those  of  a  reli- 
gious nature.  The  King  answered  wnth  contempt.  The 
Pope  rejoined  with  greater  arrogance,  and  finally  issued 
the  famous  Bull  "  Unam  Sanctam  Ecclesiam,"  Novem- 
ber 18,  1302,  in  which  he  asserted  that  Christ  had 
subjected  the  whole  human  race  to  the  authority  of  the 
Roman  pontiff ;  that  the  Church  could  have  but  one 
head  ;  that  a  two-headed  Church  would  be  a  monstros- 


Antiquated   Theories.  i  7 1 

ity  ;  that  Christ  had  granted  a  two-fold  power  to  his 
Church,  the  spiritual  aud  the  temporal  swords,  and  that 
the  temporal  sword  wielded  by  the  monarch  was  borne 
only  at  the  will  and  by  the  permission  of  the  pontiff. 
The  Pope  excommunicated  the  King  and  absolved  his 
subjects  from  their  allegiance.  The  King  called  a  coun- 
cil to  depose  the  Pope  and  sent  an  agent  to  seize  his 
person,  who  executed  his  commission  in  such  an  insult- 
ing and  brutal  manner  that  the  Pope  soon  after  died  of 
an  illness  brought  on  or  aggravated  by  his  anguish  and 
mortification  (1303). 

Since  the  downfall  of  Boniface  VIII.  scarcely  any 
attempt  has  been  made  to  put  this  theory  in  practice. 

2d.  Erastianism.  This  theory  takes  its  name  from 
Thomas  Erastus,  a  Zwinglian  Protestant,  who  was  born 
at  Baden  in  Switzerland,  September  7,  1524,  but  spent 
the  most  of  his  life  at  Heidelberg,  as  court  physician 
and  professor  of  medicine  in  the  university  of  that  city. 
Having  studied  philosophy  and  theology  in  his  early 
life  at  the  university  of  Basel,  he  took  an  interest  in 
the  theological  controversies  of  the  day.  He  was  strenu- 
ously opposed  to  the  exercise  of  rigid  discipline  in  the 
Church,  and  wrote  against  what  he  called  the  excom- 
municatory  fever  of  the  Protestant  Church,  afl&rming 
that  exclusion  from  the  sacraments  was  not  a  legitimate 
punishment  for  any  offences  whatever.  In  his  opposi- 
tion to  the  rigidity  of  discipline  he  came  at  last  to  deny 
the  right  of  the  Church  to  exercise  discipline  at  all. 
He  held  that  the  Jewish  Church,  in  which  there  were 
no  traces  of  two  diverse  jurisdictions,  the  one  civil,  the 
other  ecclesiastical,  was  the  divinely  appointed  model 
for  all  time.  He  said  that  there  was  no  reason  why  the 
Christian  magistrate  at  the  present  day  should  not 
possess  the  same  power  which  God  commanded  the 


172  The  Theojy  of  Paternalism. 

magistrate  to  exercise  in  the  Jewish  commonwealth. 
He  contended  that  excommunication  was  not  a  divine 
ordinance,  but  a  device  of  man ;  that  the  Church  has 
no  power  to  make  laws  and  decrees,  still  less  to  inflict 
pains  and  penalties  of  any  kind,  the  punishment  of  all 
offences  belonging  to  the  civil  magistrate  exclusivel)^  ; 
that  the  sacraments  being  means  of  grace  ought  not  to 
be  withheld  from  any  citizen  desiring  to  receive  them  ; 
that  the  sins  of  professing  Christians,  like  the  sins  of 
all  other  persons,  are  to  be  punished  by  the  civil  mag- 
istrate with  civil  penalties,  and  not  by  pastors  and  elders 
with  ecclesiastical  penalties. 

This  theory  is  the  opposite  of  the  Mediaeval  Ecclesi- 
astical theory.  According  to  this  theory,  the  State  is 
the  only  divine  institution,  and  is  possessed  of  all  the 
powers  commonly  supposed  to  belong  to  the  Church. 
According  to  the  other,  the  Church  is  the  only  divine 
institution  and  is  possessed  of  all  the  powers  commonly 
supposed  to  belong  to  the  State.  According  to  the  one 
theory,  the  State,  and  according  to  the  other,  the  Church, 
is  charged  with  the  care  of  both  the  temporal  and  spirit- 
ual interests  of  mankind. 

^d.  The  third  theory  may  be  called  the  theory  of 
Paternalism.  According  to  this  theory.  Church  and 
State  are  not  distinct  institutions,  which  may  be  in 
union,  or  may  be  co-ordinate  and  independent  of  each 
other,  or  may  be  in  subordination  the  one  to  the  other, 
but  are  identical.  While  this  theory  does  not  concern 
itself  specially  with  the  relation  of  the  Church  and 
State  to  each  other,  yet  fully  carried  out,  it  necessarily 
involves  a  Church  and  State  system.  Dr.  Thomas  Ar- 
nold, one  of  the  propounders  and  advocates  of  this 
theory,  held  that  the  State  is  a  moral  person  and  re- 
sponsible for  the  whole  well-being  of  the  citizen.     He 


Antiquated  Theories.  i  73 

argued  that  the  right  of  the  State  to  take  life  in  capital 
punishment,  and  to  require  the  sacrifice  of  Hfe  in  de- 
fensive war,  involves  as  a  necessary-  co-relative  the  right 
and  dut}-  of  the  State  to  care  for  the  whole  life  of  the 
citizen.  It  is  under  obligation,  therefore,  to  pro\'ide 
for  his  physical,  social,  mental,  moral,  and  spiritual  wel- 
fare. Persons  who  reject  the  first  two  theories,  the  one 
merging  the  State  in  the  Church,  the  other  merging  the 
Church  in  the  State,  may  yet  upon  this  theorj'  hold  to 
a  union  of  Church  and  State.  Mr.  Gladstone  in  a  book 
published  in  his  early  life,  entitled  The  State  in  its  Re- 
lations li'itfi  tJie  CJiiirch,  says  :  "  Wherever  there  is  power 
in  the  universe,  that  power  is  the  propertj^  of  God,  the 
King  of  that  universe  ;  his  property  of  right,  however, 
for  a  time  withholden  or  abused.  .  .  .  The  powers, 
therefore,  that  dwell  in  individuals,  acting  as  a  govern- 
ment, as  well  as  those  that  dwell  in  individuals  acting 
for  themselves,  can  only  be  secured  for  right  uses  by 
applying  to  them  a  religion." 

These  theories  maj-  be  regarded  as  now  antiquated. 
The  first  may  still  be  held  in  the  Church  of  Rome,  as 
a  theon,-,  but  there  is  now  no  place  in  the  civilized  world 
where  the  assertion  of  it  would  not  be  deemed  absurd, 
and  the  attempt  to  carr^-  it  out  preposterous. 

The  second  was  abh-  espoused  in  the  Westminster 
Assembly  of  Divines,  but  it  was  almost  unanimously 
rejected,  only  one  member,  ( Lightfoot),  voting  against 
the  proposition,  that  "The  Lord  Jesus,  as  King  and 
head  of  his  Church,  hath  therein  appointed  a  govern- 
ment in  the  hand  of  church  officers  distinct  from  the 
civil  magistrates."  And  now  it  is  held  only  by  a  Pres- 
byterian body  in  Scotland  and  in  the  United  States,  the 
Reformed  Presbyterian  Church,  which  in  both  countries 
is  insignificant  in  numbers. 


1 74  Macaulay-  Gladstone  Theories. 

The  third  theory  has  nowhere  met  with  any  general 
acceptance.  The  small  amount  of  attention  given  to 
it,  Mr.  Walter  Bagehot, — in  his  Physics  and  Politics, 
explains  by  saying  that  Dr.  Arnold  ' '  .spoke  to  ears 
filled  with  other  sounds,  and  minds  filled  with  other 
thoughts,"  which,  though  true,  falls  short  of  being  an 
adequate  explanation  of  the  fact.  The  true  explana- 
tion is,  that  the  political  world  had  passed  far  be3^ond 
the  point  in  its  development  at  which  such  a  theory 
could  command  any  serious  attention.  Mr.  Bagehot 
hints  at  this  explanation  when  he  says,  "  Dr.  Arnold 
himself,  fresh  from  the  study  of  Greek  thought  and 
Roman  history,  used  to  preach  that  this  identity  was 
the  great  cure  for  the  misguided  modern  world. 

.  But  though  the  teaching  was  wrong,  for  the 
modem  world,  to  which  it  was  applied,  it  was  excel- 
lent for  the  old  world  from  which  it  was  learned." 

Mr.  Macaulay  in  his  review  of  Gladstone's  book,  The 
State  in  its  Relations  with  the  Church,  says  :  "  Mr.  Glad- 
stone conceives  that  the  duties  of  governments  are  pa- 
ternal ;  a  doctrine  which  we  shall  not  believe  till  he  can 
show  us  some  government  which  loves  its  subjects  as 
a  father  loves  his  child,  and  which  is  as  superior  in  in- 
telligence to  its  subjects  as  a  father  is  to  a  child.  He 
tells  in  lofty,  though  somewhat  indistinct  language, 
that  '  Government  occupies  in  moral  the  place  of 
ro  Tcav  (the  all)  in  physical  science.'  If  government 
be  indeed  ro  nav  in  moral  science,  we  do  not  under- 
stand why  rulers  should  not  assume  all  the  functions 
which  Plato  assigned  to  them.  Why  should  they  not 
take  away  the  child  from  the  mother,  select  the  nurse, 
regulate  the  school,  overlook  the  playground,  fix  the 
hours  of  labor  and  recreation,  prescribe  what  ballads 
:jhall  be  sung,  what  tunes  shall  be  played,  what  books 


Macaulay-  Gladstone  Theories.  i  75 

shall  be  read,  what  physic  shall  be  swallowed  ?  Why 
should  they  not  choose  our  wives,  limit  our  expenses, 
and  stint  us  to  a  certain  number  of  dishes  of  meat,  of 
glasses  of  wine,  and  cups  of  tea  ?  " 

The  currents  of  modem  progress  have  been  tending 
so  strongly  away  from  the  whole  theorj'  of  paternalism 
that  it  has  been,  ever>^where,  losing  instead  of  gaining 
in  acceptance.  Mr.  Gladstone  long  since  secured  the 
disestablishment  of  the  Irish  Church,  and  now  in  his 
old  age  has  devoted  his  great  powers  to  the  establish- 
ment of  a  policy  which  is  entirely  out  of  harmony  with 
the  theorj^  he  espoused  in  early  life. 


CHAPTER  II. 

NO   THEORY  TO   BE  OFFERED.        ONI^Y  JUSTICE  TO   BE 
SOUGHT. 

It  is  not  our  purpose  to  discuss  the  merits  of  the 
foregoing  theories  ;  neither  is  it  our  purpose  to  pro- 
pound any  theory  of  our  own.  The  task  before  us  is 
not  that  of  constructing  theories,  but  of  discovering 
and  removing  injustice,  a  less  fascinating  task  perhaps, 
but  a  more  worthy  one.  Indeed  it  will  be  no  small 
part  of  our  work  to  guard  against  the  subtle  influence 
of  false  theories,  ill-digested  and  unformulated,  anti- 
Christian  as  well  as  Christian,  which  in  the  confusion 
of  thought  that  now  prevails  upon  the  subject  are  likely 
to  perv^ert  the  judgment  and  lead  to  injustice  on  the  one 
hand  or  the  other. 

Two  well-established  facts  must,  we  think,  be  ac- 
cepted as  having  their  foundation  in  nature  :  id.  The 
fact  that  the  civil  institutions  of  a  Christian  people  are 
necessarily  Christian.      2d.     That  the  forces  of  pro- 


1 76  No  Theory  to  be  Offered. 

gress  have  not  only  caused  the  several  theories  we  have 
just  mentioned  to  be  now  antiquated  but  have  been 
tending  towards  a  still  further  restriction  of  the  reli- 
gious function  of  civil  government.  These  facts  must 
both  be  taken  account  of  in  any  proper  determination 
of  the  questions  relating  to  the  subject.  Upon  each  of 
them  when  looked  at  alone,  a  false  theory  may  be  built, 
the  inevitable  outcome  of  which  will  be  injustice.  The 
problem  before  us  therefore  is  the  finding  of  the  proper 
adjustment, — the  co-ordination  of  these  two  facts.  Our 
work  will  therefore  be  empirical  rather  than  speculative 
in  its  character.  Confining  ourselves,  in  the  main,  to 
particular  cases,  we  shall  endeavor  to  define  the  limits 
of  these  two  facts,  so  that  the  one  shall  not  be  made 
the  means  of  inflicting  injustice  upon  non-Christian  or 
anti-Christian  people  ;  and  the  other  shall  not  be  made 
the  means  of  inflicting  injustice  upon  Christian  people. 
The  principles  of  judgment  adopted  ought,  as  a  gen- 
eral rule,  to  be  able  to  bear  the  test  of  substitution  ; 
that  is,  they  ought  to  be  equally  applicable  to  Budd- 
hism, Mohammedanism,  or  Atheism,  were  any  one  of 
those  systems  of  belief  to  become  as  prevalent  in  our 
land  as  Christianity  now  is — a  rule  which  would  sug- 
gest the  expediency  of  reducing  the  religious  functions 
of  the  government  to  the  last  degree  compatible  with 
the  rights  of  its  Christian  people. 

Although  the  fact  is  indisputable  that  the  civil  in- 
stitutions of  this  country  are  necessarily,  rightl}^  and 
lawfully  Christian,  yet  it  must  be  admitted  that  the 
boundaries  of  the  fact  and  its  legitimate  effect  have  not 
as  yet  been  well  defined.  Indojd,  legislation  has  in 
some  cases  been  framed  apparently  upon  the  assump- 
tion that  our  government  has,  and  can  have,  no  Chris- 
tian character  whatever.     Jurists  and  courts  have  gone 


Oiily  yustice  to  be  Soitght.  i  7  7 

so  far  as  to  afl5nn  that  the  government  can  of  right 
base  no  determination  or  requirement  upon  Christian 
principles  ;  that,  when  it  happens  to  require  the  obser- 
vance of  a  Christian  institution,  such  as  the  Lord's  day, 
it  must  be  for  reasons  purely  secular,  and  not  in  the 
least  degree  religious.  In  this  legislation  and  these 
affirmations  appears  verj^  clearly  the  influence  of  an 
ill-digested,  tacitly  assumed,  anti-Christian  theory,  a 
theory  based  exclusively  on  the  first  of  the  facts  above 
mentioned. 

It  is  assumed  that  the  progress  begun  in  these 
modern  times  is  thus  only  continued  towards  its  proper 
terminus  in  perfect  freedom, — a  goal  which  cannot  be 
reached  until  the  government  shall  have  been  divested 
of  all  Christian  character. 

The  question  still  remains,  therefore,  to  be  answered  : 
What  may  the  government  do,  and  what  ought  it  to  do 
in  its  Christian  character  ? — How  far  are  its  determi- 
nations and  requirements  to  be  governed  by  the  princi- 
ples of  Christianity  ?  This  question  we  now  propose 
to  answer  ;  and  seeing  that  the  three  theories  just  men- 
tioned, which  are  all  extreme  on  the  Christian  side  of 
the  question,  are  rejected  by  all  (no  one  now  believing 
that  it  is  the  duty  of  the  government  to  take  upon  it- 
self all  forms  of  Christian  work)  our  answer  will  have 
to  be  in  a  measure  negative,  a  fixing  of  hmitations. 


CHAPTER  III. 

LIMITATIONS. 

It  is  no  part  of  the  proper  function  of  the  govern- 
ment to  inculcate,  or  propagate,  or  even  foster,  Chris- 
tianit}^,  (certain  special  cases  excepted,  which  we  shall 


Limitations. 


presently  mention).  We  cannot  agree  with  Judge 
Story  when  in  the  passage  before  quoted  from  his 
Commoitary  on  the  Co7istitution  of  the  United  States 
he  says  :  "  It  is  impossible  for  those  who  believe  in  the 
truth  of  Christianity  to  doubt  that  it  is  the  especial 
duty  of  the  government  to  foster  and  encourage  it 
among  all  citizens  and  subjects,"  if  by  that  statement 
he  means  to  say  that  it  is  the  duty  of  the  government 
not  only  to  give  favor  and  preference  to  Christianity 
when  called  upon  to  take  action  in  its  courts  on  ques- 
tions pertaining  thereto,  but  to  go  further  and  adopt 
positive  measures  for  the  fostering  and  encouragement 
of  Christianity.  It  seems  to  us  that  the  exercise  of 
such  a  function  by  the  government  would  defeat  its 
own  end, — would  be  detrimental  to  both  Church  and 
State.  It  cannot  be  doubted  that  the  advancement 
which  has  been  thus  far  made  in  the  science  of  govern- 
ment, has  been  marked  by  a  progressive  elimination 
of  this  function  from  the  power  of  the  government ; 
nor  can  it  be  doubted  that  this  elimination  has  been 
the  product  of  the  true  law  of  progress,  differentiation 
in  form,  and  specialization  of  function. 

The  living  creature  which  is  nothing  but  a  globu- 
lar sack,  using  the  whole  body  in  turns,  as  mouth, 
stomach,  legs,  and  arms,  is  lower  in  the  scale  of  being, 
than  the  animal  which  is  completely  furnished  with 
organs  and  members,  each  of  which  has  its  special 
work  to  do.  Man  with  only  two  hands  is  higher  in 
the  scale  of  being  and  has  more  manual  skill  than  the 
Simians,  which  are  quadrumana,  using  their  feet  also 
as  hands.  The  right-handed  man  has  more  dexterity 
than  the  man  who  uses  both  hands  alike.  The  wood- 
man clearing  away  the  forest  may  use  his  axe,  if  need 
be,  as  a  mattock,  a  beetle,  or  a  wedge,  but  by  using  it 


Limitations.  1 79 


as  a  mattock  he  would  dull  its  edge,  and  by  using  as 
a  beetle  or  a  wedge  he  would  batter  its  head  or  bulge 
its  eye,  thereby  rendering  it  less  efficient,  if  not  alto- 
gether unfitted,  for  its  own  appropriate  work.  If  he 
would  do  the  most  work  with  the  least  expenditure  of 
force  and  the  least  injurj^  to  his  tools,  he  must  furnish 
himself  with  the  four  implements  ;  and  use  the  axe 
onh^  for  chopping,  the  mattock  only  for  grubbing,  the 
wedge  only  for  splitting,  and  the  beetle  onl}'  for  driv- 
ing the  wedge.  Even  the  fact  that  the  axe  is  essenti- 
ally a  wedge  will  not  justify  him  in  using  it  in  the 
the  place  of  a  wedge  after  that  implement  has  been 
provided.  The  same  rule  holds  good  for  human  so- 
ciet5%  The  life  of  man  is  one,  and  if  the  State  and  the 
Church  both  are  organs  of  that  life  it  is  to  be  presumed 
that  each  will  perform  its  appropriate  special  function 
best  when  it  confines  itself  exclusively  to  that  one  func- 
tion. Especially  ought  this  distribution  of  function  to 
be  precise  and  exclusive  in  a  republican  form  of  govern- 
ment, for  it  can  be  done  without  violation  of  the  rights 
of  any  supposed  paternal  prerogative.  In  a  republic 
there  is  no  rational  basis  for  vSUch  prerogative.  The 
claim  of  superior  prerogative,  without  the  possession 
of  the  appropriate  superior  gifts,  is  absurd.  The  au- 
thorit}'  of  the  father  over  his  children  has  ample  basis 
in  his  superior  gifts  ;  but  in  a  republic  the  rulers  can 
lay  claim  to  no  such  gifts.  There  has  been  no  such 
special  communication  to  them  by  the  divine  Spirit  as 
that  which  was  sj^mbolized  by  the  anointing  of  the 
kings  of  Israel.  There  is  no  lingering  shadow  of  such 
a  communication  in  the  plea  of  transmission  by  hered- 
ity, as  there  is  in  the  monarchies  of  Europe.  In  a 
republic,  therefore,  the  citizen  may  justly  claim  the 
utmost  freedom  in  the  care  of  his  varied  interests  ;  and 


i8o  Limitations. 


in  that  form  of  government  the  organs  of  his  life  ought 
to  be  brought  to  the  highest  degree  of  speciaHzation, 
since  that  is  the  condition  of  their  attaining  the  high- 
est degree  of  efficiency.  It  must  be  presumed  there- 
fore that  human  society  will  be  in  its  highest  condition 
when  civil  government  confines  itself  exclusively  to 
the  secular  work  of  protecting  the  person  and  property 
of  the  citizen ;  leaving  to  the  Church  the  care  of  his 
spiritual  interests.  It  must  be  presumed  that  Christi- 
anity will  be  purer,  have  more  vital  energy,  and  make 
more  rapid  advancement,  when  the  government  does 
not  engage  in  its  propagation. 

The  great  founder  of  Christianity  we  think  had  this 
law  of  progress  in  his  mind  when  he  bade  his  impetu- 
ous disciple  put  up  his  sword,  saying,  "  They  that  take 
the  sword  shall  perish  by  the  sword  ' '  ;  when  he  said 
to  the  Pharisees  and  Herodians  "  Render  therefore 
unto  Caesar  the  things  that  are  Caesar's,  and  unto  God 
the  things  that  are  God's  "  ;  when  he  said  to  Pilate, 
' '  My  kingdom  is  not  of  this  world,  else  would  my  ser- 
vants fight,  that  I  should  not  be  delivered  to  the  Jews. ' ' 
Nothing  is  more  marked  in  his  life  than  the  little  con- 
cern he  manifested  to  secure  the  aid  of  governmental 
power  for  the  advancement  of  his  cause  ;  nothing  more 
striking  than  the  calm  assurance  with  which  he  sent 
forth  his  handful  of  followers  to  make  the  conquest  of 
the  world,  not  only  without  the  aid  of  secular  power, 
but  against  the  most  determined  opposition  of  the 
mightiest  secular  power  on  earth.  The  watchword 
God  gave  to  his  church  was,  "  Not  by  might,  nor  by 
power,  but  by  my  Spirit,  saith  the  I^ord  of  Hosts." 


Mystical  Theories  of  the  State.        i8i 
CHAPTER  IV. 

MYSTICAL  THEORIES   OF  THE  STATE. 

I.  Personality  of  the  State. — There  are  mystical 
theories  of  the  State,  in  accordance  with  which  it  is 
held  that  the  care  of  the  life  of  man,  in  all  its  depart- 
ments, is  inherent  in,  and  inseparable  from,  the  State  ; 
the  theory  that  the  State  is  a  personality  having  all  the 
attributes  of  the  personalities  composing  it  and  stand- 
ing in  authority  over  all.  Plato  held  that  the  State 
was  a  living  body  ;  Mr.  Herbert  Spencer  regards  it  as 
a  vital  organism  ;  the  late  Rev.  Elisha  Mulford,  D.  D., 
argues  in  his  work  entitled  The  Nation,  that  it  is  a 
moral  personality  ;  Prof  J.  K.  Bluntschli  asserts  in  his 
work  entitled  The  Theory  of  the  State,  that  it  is  a  mas- 
culine moral  personality.  Bluntschli  says:  "Whilst 
history  explains  the  organic  nature  of  the  State,  we 
learn  from  it  at  the  same  time  that  the  State  ...  is 
a  moral  and  spiritual  organism,  a  great  body,  which 
is  capable  of  taking  up  into  itself  the  feelings  and 
thoughts  of  the  nation,  of  uttering  them  in  laws,  and 
realizing  them  in  acts  ;  we  are  informed  of  the  moral 
qualities  and  of  the  character  of  each  State.  History 
a.scribes  to  the  State  a  personality  which,  having  spirit 
and  bod}^  possesses  and  manifests  a  will  of  its  own. 

' '  The  glory  and  honor  of  the  State  have  always  ele- 
vated the  hearts  of  its  sons  and  animated  them  to  sacri- 
fice. For  freedom  and  independence,  for  the  rights  of 
the  State,  the  noblest  and  best  have  in  all  times  and 
all  nations  expended  their  goods  and  their  lives.  To  ex- 
tend the  reputation  and  the  power  of  the  State,  to  fur- 
ther its  welfare  and  its  happiness,  has  universally  been 
regarded  as  one  of  the  most  honorable  duties  of  gifted 
men.     The  joys  and  sorrows  of  the  State  have  always 


Mystical  Theories  of  the  State. 


been  shared  by  all  its  citizens.  The  whole  idea  of 
Fatherland  and  love  of  country  would  be  inconceivable 
if  the  State  did  not  possess  this  high  moral  and  personal 
character.     .     .     . 

"  The  personality  of  the  State  is,  however,  only  recog- 
nized b}'-  free  people  ;  and  only  in  a  civilized  nation- 
State  has  it  attained  to  full  efficacy.  In  the  earlier 
stages  of  politics  only  the  Prince  is  prominent ;  he 
alone  is  a  person,  and  the  State  is  merely  the  realm  of 
his  personal  rule.  The  same  is  true  with  regard  to  the 
masculine  character  of  the  modern  State.  This  be- 
comes first  apparent  in  contrast  with  the  feminine 
character  of  the  Church.  A  religious  community  may 
have  all  the  other  characteristics  of  a  political  commu- 
nity, yet  she  does  not  wish  to  be  a  State,  and  is  not  a 
State  just  because  she  does  not  consciously  rule  her- 
self like  a  man  and  act  freely  in  her  external  life  ;  but 
wishes  only  to  serve  God  and  perform  her  religious 
duties.  To  put  together  the  results  of  this  historical 
consideration,  the  general  conception  of  the  State  may 
be  determined  as  follows  :  the  State  is  a  combination 
or  association  {Gesammtheif)  of  men,  in  the  form  of 
government  and  governed,  on  a  definite  territory, 
united  together  into  a  moral,  organized,  masculine  per- 
sonality ;  or,  more  shortly,  the  State  is  the  politically 
organized  national  person  of  a  definite  country."  ' 

It  is  very  evident  that  according  to  this  theory  the 
care  for  the  religious  interests  of  the  people  cannot  be 
separated  from  civil  government  without  detriment  to 
the  life  of  the  whole  body,  for — to  use  an  illustration 
of  Bluntschli  given  in  another  place — "  The  head  can- 
not be  separated  from  the  body  and  made  equal  to  it 
without  killing  the  man." 

'  The  Theory  of  the  State,  Oxford,  1892,  pp.  22,  23. 


Mystical  Theories  of  the  State.  183 

This  theoty,  if  it  be  anything  more  than  a  dream  of 
mysticism,  if  it  be  admitted  to  have  a  speculative  valid- 
ity, can  have  very  little  bearing  upon  practical  politics  ; 
not  more  than  cosmogony,  geology,  and  chemistry  have 
upon  practical  agriculture.  As  yet,  success  in  farming 
is  attained  b}-  empirical,  rather  than  by  scientific  meth- 
ods. As  in  the  one  case,  so  in  the  other,  the  question 
is  usually  one  of  results,  rather  than  of  principles, 
allowing,  of  course,  some  influence  to  scientific  princi- 
ples in  the  determination,  but  not  allowing  them  to 
overbalance  the  practical  judgment,  as  applied  to  exist- 
ing conditions.  Providence,  by  the  ordering  the  condi- 
tions, historical  and  local,  builds  the  State  ;  not  man, 
by  the  application  of  his  theories. 

It  is  to  be  noticed  that  Bluntschli,  while  holding 
formally  the  theory  of  the  moral  personality  of  the 
State,  makes  very  little  further  reference  to  it  in  the 
learned  and  scientific  treatise  from  w^hich  we  have 
quoted.  Notwithstanding  that  his  theory  implies  the 
ultimate  supremacy  of  the  State  over  all  human  inter- 
ests, yet  he  seems  to  have  come,  practically,  to  the  posi- 
tion we  have  just  taken.  He  sa3'S  :  "  The  idea  that 
the  objective  difference  of  political  function  requires  a 
corresponding  subjective  separation  in  the  organs  to 
w^hich  these  functions  belong,  has  been  produced  by 
the  course  of  modern  politics.  .  .  .  Excessive  power 
united  in  one  hand  certainly  endangers  personal  free- 
dom. If  the  difierent  branches  of  power  are  separated, 
they  are  all  mutually  limited.  Nevertheless  the  de- 
cisive reason  for  such  specialization  is  not  the  practical 
security  of  civil  liberty,  but  the  organic  reason  that 
every  function  will  be  better  fulfilled  if  its  organ  is 
specially  directed  to  this  particular  end,  than  if  quite 
different  functions  are  assigned  to  the  same  organ.     The 


184  Mystical  Theories  of  the  State. 

statesman  only  follows  the  example  of  nature  ; — the  eye 
is  adapted  for  sight,  the  ear  for  hearing,  the  mouth  for 
speaking,  the  hand  for  seizing.  The  body-politic  should 
in  the  same  way  have  a  separate  organ  for  each  func- 
tion." Yet  to  save  the  theory,  and  tempted  by  the  il- 
lustration employed,  he  goes  on  to  say,  "The  favorite 
expression  '  separation  (  Trennung)  of  powers '  leads  to 
false  applications  of  a  true  principle.  A  complete  sepa- 
ration or  sundering  of  powers  would  be  a  dissolution 
of  the  unity  of  the  State.  Just  as  in  the  body  natural, 
all  the  limbs  are  connected  together,  so  in  the  body- 
politic,  the  connection  of  the  organs  is  not  less  impor- 
tant than  their  difference.  In  the  State  there  must  be 
unit}^  of  power,  and  so  the  powers,  though  distinguished 
according  to  their  functions,  must  not  be  absolutely 
separated."  He  criticises  the  exactness  and  compre- 
prehensiveness  of  the  threefold  distinction  made  by 
Montesquieu  in  the  powers  of  the  State, — Legislative, 
Executive,  and  Judicial, — observing  that  it  has  been 
"adopted  by  English  political  theorists,"  and  "has 
been  carried  out  with  rigor,  but  not  without  exaggera- 
tion, in  the  United  States  of  North  America,  and  has 
been  .sanctioned  by  a  whole  series  of  modern  European 
constitutions  ' '  ;  and  goes  on  to  say  :  ' '  The  function  of 
sovereignty  may  appear  to  be  exhausted  \>y  this  three- 
fold distinction,  and  we  can  easily  understand  how  re- 
cent constitutions  have  commonly  limited  themselves 
to  these.  But  on  closer  examination  we  find  that  there 
are  two  other  groups  of  organs  and  functions,  both  of 
which  are  indeed  subordinate  to  that  of  government, 
but  may  still  be  distinguished  from  it,  having  much  less 
the  character  of  authority  and  command,  which  in  gov- 
ernment is  essential.     These  are  : 

"  /F.     The  superintendence  and  care  of  the  intellect- 
ual elements  of  civilization  {Statscultur.) 


Mystical  Theories  of  the  State.  185 

' '  V.  The  administration  and  care  of  material  inter- 
ests iStatswirthshaff)^  Political  economy  in  the  original 
sense. 

' '  In  these  two  groups  there  is  no  question  of  govern- 
ing. The  great  factors  of  civilization, — religion,  science, 
art, — do  not  belong  to  the  organism  of  the  State.  Thus 
the  relation  of  the  State,  even  to  the  external  institu- 
tions of  religion,  science,  and  art,  to  the  Church  and 
the  school,  is  fundamentally  different  from  the  relation 
between  government  and  subjects,  in  its  own  proper 
sphere.  Such  matters  cannot  be  subjected  to  the  do- 
minion of  the  State  ;  its  functions  are  therefore  limited 
to  superintendence  and  fostering  care  {Aufsicht  tind 
Pflege).^  .  .  . 

' '  This  distinction  in  the  functions  of  the  State  has 
only  in  recent  times  come  to  be  gradually  recognized. 
We  still  suffer  from  a  confusion  of  commanding  and 
fostering.  Sometimes  things  are  commanded  or  for- 
bidden, which  should  only  be  managed  or  controlled  ; 
sometimes  there  is  a  timid  assistance  or  control,  where 
there  ought  to  be  energetic  and  authoritative  action. 
But  matters  are  better  than  they  were  a  hundred,  or 
even  fifty  years  ago.  Many  institutions  have  been  al- 
ready separated  from  the  direct  administration  of  gov- 
ernment, and  are  managed  without  the  employment  of 
force  in  a  spirit  of  scientific  and  technical  care,  and  in 
the  interests,  at  once,  of  the  welfare  and  the  freedom 
of  the  community."  ' 

If  we  should  accept  this  theory  of  the  State  as  true, 
and  accept  also  the  illustration  used — the  human  body 
— as  fully  analogous,  we  might  still  question  the  cor- 
rectness of  the  application  of  the  illustration  to  the 
truth  it  was  intended  to  illustrate,  viz.  :  that  as  the 
head  holds  in  subjection  to  itself  and  governs  every 
'  Ibid.,  pp.  51S,  519,  524,  555. 


1 86  Mystical  Theories  of  the  State. 

other  part  of  the  body,  so  the  civil  government  must 
hold  in  subjection  to  itself  and  govern  every  depart- 
ment of  man's  social  life.  We  may  maintain  that  the 
soul,  mind,  spirit,  or  whatever  that  may  be  called 
which  constitutes  the  personality  of  man,  resides,  not 
in  the  head  alone,  but  in  the  whole  body,  and  varies 
its  manifestations  as  the  organs  through  which  it  acts 
are  varied.  As  in  the  electrical  system  of  the  city,  the 
electricity,  fluid,  vibrating  medium,  or  whatever  it  may 
be,  pervades  the  whole,  and  is  manifested,  here,  as  the 
dazzling  light  of  the  arc  lamp,  there,  as  the  soft  light 
of  the  incandescent  lamp,  and  in  another  place  as  mo- 
tive power  ;  so  that  which  constitutes  human  person- 
ality pervades  the  whole  body,  and  is  manifested  in  the 
living  cell  as  vital  principle,  in  muscular  fibre  as  con- 
tractile energy,  and  in  the  nervous  tissue  as  sensation, 
feeling,  will,  and  thought.  The  brain  is  only  one  of 
the  organs  through  which  this  all-pervading  something 
acts,  and  has  no  superiority  to  the  rest,  excepting  that 
it  may  be  conceded  to  be  primary  while  the  others  are 
secondar)^,  just  as  the  crank  of  the  machine  in  the 
hands  of  the  man  who  turns  it  may  be  said  to  be  pri- 
mary. So  if  we  should  concede  this  theory  of  the  State 
to  be  true,  we  might  still  maintain  that  the  people  con- 
stitute the  personality  of  the  State  ;  that  the  civil 
government  and  the  Church  are  both  alike  organs 
through  which  the  people  act ;  and  that  while  both 
are  united  with  and  dependent  upon  the  same  people, 
they  are  yet,  as  organs,  separate  from  and  independent 
of  each  other.  While  the  civil  government  is  Chris- 
tian, it  is  no  part  of  its  proper  function  to  inculcate, 
propagate,  or  even  to  foster  Christianity',  as  it  is  no 
part  of  the  function  of  the  eye  to  hear,  or  of  the  ear 
to  see. 


Mystical  Theories  of  tJie  State.  1 8  7 

The  distinction  Bluntschli  makes  between  the  State 
as  a  masculine  personahty  and  the  Church  as  a  femi- 
nine personaHty  involves  the  separation  we  are  con- 
tending for.  Whatever  may  have  been  the  union  of 
function  in  the  earlier  stages  of  man's  development, 
it  is  very  plain  that  now  the  man  cannot  exercise  the 
specific  functions  of  the  woman,  nor  can  the  woman 
exercise  those  of  the  man.  No  one  would  ever  think 
of  trying  to  maintain  that  the  fields  on  which  the  mem- 
bers of  the  husbandman's  fam.ily  are  working  and  the 
house  in  which  they  dwell  are  two  persons,  the  one 
masculine  and  the  other  feminine.  There  is  nothing 
more  in  the  case  than  the  simple  fact  that  in  the  fields 
the  one  family  is  engaged  in  one  department  of  work 
for  the  common  good,  and  in  the  dwelling  house  it  is 
engaged  in  another  department  of  work  for  the  same  end. 
So,  in  the  State  and  the  Church,  there  is  nothing  more 
than  the  fact  that  the  one  nation  is  engaged  in  difierent 
departments  of  work  for  the  common  good.  There  is 
as  much  reason  for  saying  that  there  is  a  masculine  and 
feminine  personality  in  the  former  case  as  in  the  latter  ; 
and  to  make  the  theory  complete,  we  should  have  to 
affirm  that  the  mart  constitutes  a  third  personality,  a 
neuter  perhaps.  Mere  increase  of  dimension  may  excite 
the  imagination,  but  it  cannot  make  any  difference  in 
principles. 

Mr.  Gladstone  in  the  work  before  referred  to  ad- 
vanced this  theor5^  He  says  :  "  National  will  and 
agency  are  indisputably  one,  binding  either  a  dissent- 
ing minority  or  the  subject-body  in  a  manner  that 
nothing  but  the  recognition  of  the  doctrine  of  national 
personality  can  justify.  National  honor  and  good  faith 
are  words  that  are  in  every  one's  mouth.  How  do 
they  less  imply  a  personality  in  nations  than  the  duty 


1 88  Mystical  Theories  of  the  State. 

towards  God  for  which  we  now  contend  ?  They  are 
strictly  and  essentially  distinct  from  the  honor  and 
good  faith  of  the  individuals  composing  the  nation. 
France  is  a  person  to  us,  and  we  to  her.  A  wilful  in- 
jury done  to  her  is  a  moral  act,  and  a  moral  act  quite 
distinct  from  the  acts  of  all  the  individuals  composing 
the  nation.  Upon  broad  facts  like  these  we  may  rest 
without  resorting  to  the  more  technical  proof  which  the 
laws  afford  in  their  manner  of  dealing  with  corpora- 
tions. If,  then,  a  nation  have  unity  of  will,  have  per- 
vading sympathies,  have  capability  of  reward  and 
suffering,  contingent  upon  its  acts,  shall  we  deny  its 
responsibility  ;  its  need  of  religion  to  meet  that  respon- 
sibility ?  .  .  .  A  nation,  then,  having  a  personality, 
lies  under  the  obligation,  like  the  individuals  compos- 
ing its  governing  body,  of  sanctifying  the  acts  of  that 
personality  by  the  offices  of  religion,  and  thus  we  have 
a  new  and  imperative  ground  for  the  existence  of  a 
State  religion."  It  is  to  be  observed  that  this  theory 
is  employed  by  Mr.  Gladstone  to  justify  the  union  of 
Church  and  State,  for  if  the  State  be  a  person  it  is 
bound  like  every  other  person  to  be  religious.  This 
theory,  we  feel  warranted  in  saying,  belongs  to  the  re- 
actionary rather  than  to  the  progressive  tendencies  of 
the  times,  an  indication  of  which  is  to  be  found  in  the 
fact  that  Mr.  Gladstone  himself  has  abandoned  it. 
Having  long  since  descended  from  the  heights  of 
speculative,  to  the  arena  of  practical  politics,  he  was 
compelled  to  leave  his  theories  behind  and  deal  with 
existing  evils  separately  and  empirically,  or  rather  to 
accept  with  more  confidence  the  general  theory  of 
freedom. 

It  is  interesting  to  observe  how  his  large  experience 
and  practical  wisdom  have  confirmed  his  faith  in  natural 


Mystical  Theories  of  the  State.  189 

forces,  operating  in  a  state  of  freedom,  for  the  remedy 
of  existing  evils  and  the  establishment  of  justice.  Upon 
the  merits  of  the  theory  in  question  as  propounded  by 
him  in  his  early  days,  it  will  suffice  to  quote  Mr. 
Macaulay's  criticism  : 

"  Is  it  not  perfectly  clear  that  this  argument  applies 
with  exactly  as  much  force  to  every  combination  of 
human  beings  for  a  common  purpose,  as  to  govern- 
ments ?  Is  there  any  such  combination  in  the  world, 
whether  technically  a  corporation  or  not,  which  has 
not  this  collective  personality  from  which  Mr.  Glad- 
stone deduces  such  extraordinary  consequences  ?  L,ook 
at  banks,  insurance  offices,  dock  companies,  canal  com- 
panies, gas  companies.  ...  Is  there  a  single  one 
of  these  combinations  to  which  Mr.  Gladstone's  argu- 
ment will  not  apply  as  well  as  to  the  State  ?  In  all 
these  combinations,  in  the  Bank  of  England,  for  ex- 
ample, or  in  the  Athenaeum  Club,  the  will  and  agency 
of  the  society  are  one  and  bind  the  dissentient  minority. 
The  Bank  and  the  Athenaeum  have  a  good  faith  and 
a  justice  different  from  the  good  faith  and  justice  of  the 
individual  members.  The  Bank  is  a  person  to  those 
who  deposit  bullion  in  it.  The  Athenaeum  is  a  person 
to  the  butcher  and  the  wine  merchant.  If  the  Athe- 
naeum keeps  money  at  the  Bank,  the  two  societies  are 
as  much  persons  to  each  other  as  France  and  England. 
Either  society  may  pay  its  debts  honestly  ;  either  may 
try  to  defraud  its  creditors  ;  either  may  increase  in  pros- 
perity ;  either  may  fall  into  difficulties.  If  then  they 
have  this  unity  of  will  ;  if  they  are  capable  of  suffering 
good  and  evil,  can  we,  to  use  Mr.  Gladstone's  words, 
'  deny  their  responsibility  or  their  need  of  a  religion  to 
meet  that  responsibility  ?  *  Joint-stock  banks,  there- 
fore, and  clubs,   '  having  a  personality,  lie  under  the 


1 90  Mystical  Theories  of  the  State. 

necessity  of  sanctifying  that  personality  by  the  offices 
of  rehgion '  ;  and  thus  we  have  '  a  new  and  impera- 
tive ground '  for  requiring  all  the  directors  and  clerks 
of  joint-stock  banks,  and  all  the  members  of  clubs,  to 
qualify  by  taking  the  sacraments. ' ' 

There  is  no  agreement  among  the  advocates  of  the 
mystical  theory  upon  the  organic  unit,  which  on  ac- 
count of  its  possessing  functions  of  its  own,  is  to  be  re- 
garded as  a  person.  With  some  it  is  the  Nation,  with 
others  the  State,  and  with  others  society.  The  last  are 
the  most  philosophical  as  society  is  the  larger  generali- 
zation. Society  is  the  genus  ;  the  Nation  and  State 
are  species :  society  is  primary  ;  the  Nation  and  State 
are  secondary :  society  is  the  source  from  which  the 
Nation  and  State  derive  all  their  functions.  In  some 
scientific  treatises  on  those  functions  which  are  supposed 
to  constitute  the  personality  of  the  State,  society  alone 
is  spoken  of  as  the  subject  of  them.  Society  is  the 
person  against  whom  all  socialists,  anarchists,  and 
vagabonds,  charge  their  grievances.  They  growl  and 
threaten  alike  in  all  civilized  Nations  and  States,  for 
they  find  that  while  the  Nations  and  States  differ, 
society  and  the  great  body  of  law  are  essentially  the 
same  in  them  all.  The  anarchist  may  plead — and  his 
plea  cannot  be  gainsaid — that  he  has  no  malice  afore- 
thought or  personal  hatred  against  the  man  he  has 
killed  with  his  bomb,  and  therefore  that  the  essential 
element  of  the  crime  of  murder  is  wanting  in  his  act. 
It  is  another  person  he  hates  and  desires  to  kill.  If  it 
were  only  men  he  had  to  deal  with  he  would  reason 
with  them  ;  he  would  never  think  of  doing  anything 
so  preposterous  as  attempting  to  bring  about  the  re- 
form he  desires  by  killing  off  all  the  men  who  differed 
from  him  in  opinion.     He  has  no  hope,  however,  of 


Mystical  Thcoi'ies  of  the  State.  191 

persuading  that  mystical  person  with  whom  he  imagines 
he  has  to  deal ;  there  is  nothing  left  for  him  but  to  kill 
that  person.  He  throws  his  bomb  at  a  shadow  which 
he  mistakes  for  a  person,  but,  unfortunately,  it  always 
kills  a  man  when  it  kills  anybody.  This  theory,  there- 
fore, which  seemed  to  be  nothing  but  a  harmless  dream, 
has  become,  in  some  cases,  a  very  mischievous  thing, — 
a  deadl}^  thing  to  man}-  innocent  persons. 

2.  Sovereignty. — There  is  another  mystical  theorj^ 
of  the  State,  not  so  distinct  in  its  outline,  nor  so  highly 
developed  in  its  form,  as  the  foregoing,  which  has  arisen 
from  a  supposed  necessity  of  hypostatizing  a  something 
to  serve  as  the  residence  of  that  essential  attribute  of  all 
government,  sovereignty.  The  existence  of  sovereignty 
is  as  necessar}^  in  the  freest  republic  as  in  the  most  ab- 
solute monarchy.  Blackstone  says  :  "  How  the  several 
forms  of  government,  as  we  now  see  them  in  the  world, 
began,  is  a  matter  of  great  uncertaint}',  and  has  occa- 
sioned infinite  disputes.  It  is  not  my  business  or  inten- 
tion to  enter  into  any  of  them.  However  they  began, 
or  by  what  right  soever  they  subsist,  there  is,  and  must 
be,  in  all  of  them,  a  supreme,  irresistible,  absolute,  un- 
controlled authority,  in  which  W\Q.jiira  smnmi  imperii, 
or  the  rights  of  sovereignty,  reside."  ' 

The  necessity  of  sovereignty  may  be  readily  recog- 
nized, but  its  residence  cannot  be  so  easily  found.  In 
a  democracy  the  sovereignty  is  said  to  reside  in  the 
people,  but  the  suffrage,  the  instrument  by  which 
the  sovereignty  is  supposed  to  be  exercised,  nowhere 
belongs  to  all  the  people."  In  our  own  land  it  is 
withheld  from  women  ;  from  all    male   residents  who 

'  Com.,  Introduction,  Sec.  2. 

*  Judge  Cooley  says  in  his  Constitutional  Limitations  :  "Sov- 
ereignty as  applied  to  States,  imports  the  supreme,  absolute. 


192  Mystical  Theories  of  the  State. 

were  born  in  a  foreign  country  until  they  comply  with 
certain  terms  and  forms  of  naturalization  ;  from  all 
native-born  males,  who  are  under  twenty-one  j^ears 
of  age  ;  who  have  not  resided  in  the  state,  county,  and 
precinct  a  prescribed  time  before  the  election  ;  from  the 
inmates  of  insane  asylums  and  almhouses ;  and  from 
all  who  have  been  convicted  of  an  infamous  crime. 
But  by  whom  withheld  ?  By  the  sovereign.  But  who 
and  where  is  the  sovereign  ?  If  the  ballot  is  given  or 
withheld  by  the  sovereign  it  cannot  be  itself  a  mark  of 
sovereignty,  or  a  guide  to  its  residence.  When  women 
set  up  a  claim  to  the  ballot  on  the  ground  that  it  belongs 
to  them  by  natural  right,  it  is  answered  that  the  elective 
franchise  is  not  the  natural  right  of  any  body,  but  a 
privilege  conferred  upon  those  who  poSvSess  it.  When 
they  argue  that  being  taxed,  they  ought  to  have  repre- 
sentation in  the  government,  it  is  answered  that  taxation 
gives  no  right  to  representation  ;  that  also  is  a  privilege, 
given  or  denied,  as  the  sovereign  may  think  best.  Great 
numbers  of  men,  citizens  as  well  as  aliens,  own  property 
and  are  taxed  where  they  have  no  right  to  vote.  It  is 
answered,  also,  that  it  has  been  ordained  by  the  sover- 
eign that  the  officers,  elected  by  the  few  upon  whom 

uncontrollable  power  by  -whicli  any  State  is  governed."  i, 
(Fourth  Edition). 

"  The  theory  of  our  political  system  is  that  the  ultimate  sover- 
eignty is  in  the  people,  from  whom  springs  all  legitimate 
authority.  .  .  What  are  we  to  understand  by  the  People  in 
this  connection  ?  .  .  .  As  a  practical  fact  the  sovereignty  is 
vested  in  those  persons  who  are  permitted  by  the  Constitution 
of  the  State  to  exercise  the  elective  franchise."     36,  37. 

"  The  authority  of  the  people  is  exercised  through  <?/<?r//<?«5 
by  means  of  which  they  choose  legislative,  executive,  and  ju- 
dicial officers,  to  whom  are  to  be  entrusted  the  exercise  of  powers 
of  government."     752. 


I 


Mystical  Theories  of  the  State.  193 

the  privilege  of  the  suffrage  lias  been  conferred,  shall 
be  the  representatives  of  all,  men  and  women,  adults 
and  minors,  the  taxed  and  the  untaxed.  It  appears 
from  the  arguments  of  those  who  are  contending  for 
the  real  existence  of  this  something,  that  all  of  the  so- 
called  political  rights  are  not  rights  at  all,  but  privileges, 
granted  by  the  sovereign  ;  and  it  becomes  therefore  all 
the  more  important  that  we  should  know  who,  or  what, 
this  supreme  authority  is.  As  a  matter  of  course,  it 
cannot  be  those  male  citizens  who  have  the  suffrage, 
for  they  are  recipients  of  the  grant,  and  the  same  per- 
sons cannot  be  both  grantors  and  recipients.  It  must 
be  then  something  or  somebod)'^,  above  and  antecedent 
to,  the  exercise  of  the  elective  franchise,  above  and 
before  any  action  of  anj'  or  all  of  the  citizens  ;  and  we 
still  have  to  ask  what,  or  who  is  it.  The  difficulty  of 
answering  this  question  has  led  to  the  hj^pothesis  of  an 
individual  existence  antecedent  to  all  governmental 
organization,  and  from  which  the  government  derives 
all  its  authority. 

Resort  is  had  to  this  hypothesis  to  justify  certain 
measures  of  the  government ;  for  example,  it  is  argued 
that  the  State  has  an  absolute  dominion  over  the  prop- 
ert}^  of  the  citizen  because  its  antecedent  existence  has 
made  property  possible, — a  superfluous  and  impertinent 
argument,  since  if  the  sovereign  has  conferred  all  rights, 
he  must  be  the  possessor  of  all  rights  ;  if  he  is  the 
source  and  author  of  all  law,  he  must  himself  be  above 
all  law,  and  it  follows  that  "  where  no  law  is,  there  is  no 
transgression. ' '  The  sovereign  can  do  no  wrong.  His 
own  nature  is  his  only  law,  and  the  supposition  that  he 
would  violate  his  own  nature  is  inadmissible.  It  is 
argued  also  that  this  hypothetical  existence — the  State 
— may  have  interests  of  its  own  different  from,  and  even 


194  Mystical  Theories  of  the  State. 

antagonistic  to,  the  interests  of  the  people,  or,  at  least, 
to  their  opinion  of  what  their  interests  are  ;  in  which 
case,  its  own  self-preservation  must  be  the  first  and 
supreme  law  ;  and  the  maxim,  sains  popidi  siiprema  est 
lex  is  converted  into  sahis  civitatis  S7ipre?na  est  lex. 

But  how  does  this  sovereignty  come  into  being  ?  It 
is  said  that  it  springs  up  necessarily  from  the  living  of 
men  in  proximity  to  one  another.  It  cannot  get  its 
being  from  any  act  of  organization  performed  by  them, 
for  then  it  would  be  their  creature,  and  not  their  sover- 
eign. It  has  therefore  a  necessary,  independent,  and 
antecedent  existence  ;  and  the  question  still  remains, 
What  is  it  ? 

It  is  conceived  of  so  vaguely  by  those  who  contend 
for  it  that  they  apply  to  it  the  terms,  people,  state, 
nation,  society,  and  brotherhood,  interchangeably,  as 
though  these  terms  were  equivalent,  or  as  though  they 
stood  for  different  stages  in  the  development  of  the 
same  thing.  The  last  generalization, — the  universal 
brotherhood  of  man, — is  supposed  to  be  the  ideal  State, 
the  ultimate  abode  of  sovereignty.  This  theory,  capti- 
vating as  it  is  to  the  benevolent  heart  and  the  scien- 
tific imagination,  is,  like  Plato's  Republic,  a  dream  of 
mysticism,  not  the  product  of  an  induction.  Better  be 
a  thorough-going  Platonist  and  hold  that  the  idea  of 
the  State,  as  of  all  other  things,  is  an  eternal  individ- 
ual existence  ;  and  that  the  government,  like  all  other 
things,  derives  its  being  from  the  eternal  idea,  of  which 
it  is  but  an  imperfect  realization. 

A  scientific  induction  will  show  that  the  sovereignty 
in  government  is  nothing  but  preponderating  force, 
which  enables  those  who  possess  it  to  do  as  they  will. 
They  will  be  governed  in  the  exercise  of  it,  more  or 
less,  by  benevolent,  moral  and  prudential  considerations 
for  they  have  a  sympathetic,  moral,  and  rational  nature. 


Mystical  Theories  of  the  State.  195 

but  the  ultimate  basis  of  sovereignty  in  government  is 
force,  no  less  so  in  a  democracy  than  in  a  monarchy. 
Prof  William  G.  Sumner,  in  one  of  his  essays,  ridicules 
the  popular  phrase  "  the  peaceable  arbitrament  of  the 
ballot";  maintaining  that  the  ballot  is  a  weapon  of 
war,  and  not  an  implement  of  peace,  and  is  serviceable 
for  preserving  peace  only  by  indicating  on  which  side  the 
preponderance  of  force  lies.  A  minorit}-  of  the  strong 
will  never  be  controlled  by  a  majority  of  the  weak  ;  a 
minority  of  wolves  will  never  be  controlled  by  a  major- 
ity of  sheep  ;  nor  wnll  a  minority  of  men  ever  be  con- 
trolled by  amajority  of  women,  unless  by  some  revulsion 
in  nature  the  women  become  amazons  and  the  men 
pygmies.  Carljde's  assertion  that  "the  ultimate  ques- 
tion between  every  two  human  beings  is  '  Can  I  kill 
thee,  or.  Canst  thou  kill  me,'  "  is  only  a  harsh  and 
extravagant  way  of  stating  a  truth.  Mr.  Bagehot,  in 
his  Physics  and  Politics,  states  it  much  more  appro- 
priately when  just  before  referring  to  the  assertion  of 
the  rugged  Scotchman,  he  says,  "  The  savage  virtues, 
which  tend  to  war,  are  the  daily  bread  of  human 
nature." 

The  preponderance  of  force  in  every  form  of  govern- 
ment is  ultimately  with  the  people.  It  is  potential 
energy,  and  is  kept  from  becoming  kinetic,  only  by  the 
restraint  of  circumstances,  as  it  is  in  the  ph5^sical  world 
by  the  restraint  of  position,  which,  in  both  cases,  is 
adventitious.  Every  government,  even  the  most  des- 
potic, rests  ultimately  upon  the  consent  of  the  governed. 
A  very  complex  aggregation  of  influences  may  move 
them  to  give  their  consent,  but  without  it  no  govern- 
ment could  stand. ' 

'  Mr.  Herbert  Spencer,  in  his  essay,  entitled  "The  Social 
Organism,"  says  :  "  We  all  know  that  the  enactments  of  repre- 
sentative governments  ultimately  depend  on  the  national  will. 


196  Mystical  Theories  of  the  State. 

That  the  sovereignty  does  not  reside  in  a  mystical, 
antecedent,  unchangeable  something,  but  in  the  pos- 
sessors of  the  predominating  force,  seems  to  follow 
from  the  conceded  right  of  revolution.  When  the  pre- 
ponderance of  force  is  with  those  who  are  opposed  to 
the  existing  government,  and  they  are  minded  to  over- 
throw the  old  and  establish  a  new,  they  put  forth  an 
act  of  sovereignty.  They  may  act  unwisely,  may  mis- 
take what  is  for  the  good  of  the  people,  as  they  have 
often  done  in  the  republics  of  Central  and  South  Amer- 
ica, but  the  possessor  of  the  preponderating  force,  the 
sovereign,  is  under  no  law,  and  is  accountable  for  his 
acts  only  to  himself.  All  nations  recognize  a  de  facto 
government,  which  gives  promise  of  maintaining  itself, 
without  troubling  themselves  with  the  question  dejure. 
The  sovereignty  of  the  East  Indies  resides  in  Great 
Britain,  not  in  a  mystical  something,  aboriginal,  and 
sprung  from  the  soil  of  India.  Before  the  year  1776 
the  sovereignty  over  the  British  colonies  in  America 
resided  in  England  ;  or  if  in  both  England  and 
America,  that  mystical  something  was  nevertheless  a 
unit.     There  are  two  sovereigns  now  where  there  was 

They  may,  for  a  time,  be  out  of  harmony  with  it,  but  eventually 
they  must  conform  to  it.  .  .  .  In  the  case  of  a  government, 
representing  a  dominant  class,  the  same  thing  holds,  though  not 
so  manifest.  For  the  very  existence  of  a  class,  monopolizing  all 
power,  is  due  to  certain  sentiments  in  the  commonalty.  But 
for  the  feeling  of  loyalty,  on  the  part  of  retainers,  a  feudal 
system  could  not  exist.  .  .  .  Even  where  the  government  is 
despotic  the  doctrine  still  holds.  The  character  of  the  people 
is,  as  before,  the  original  source  of  this  form.  .  .  .  Moreover, 
such  regulations  as  a  despot  makes,  if  really  operative,  are  so 
because  of  their  fitness  to  the  social  state  ....  and  when 
they  are  out  of  harmony  with  the  national  character  they  are 
soon  practically  abrogated." 


Mystical  Theories  of  the  Siatc.  1 9  7 

only  one  before.  Did  that  one  multiply  itself  in  1776 
by  fission  ? 

The  genesis  of  the  State  may  be  easily  traced.  Black- 
stone  says  that  ' '  the  only  true  and  natural  foundations 
of  society  are  the  wants  and  fears  of  individuals  "  '  ;  a 
statement  which  needs  a  slight  modification  and  the 
addition  of  two  or  three  items  : 

The  duties  of  man  may  be  classified  under  four  heads  : 
Self-development,  Reproduction,  Service  to  his  Fellow- 
men,  and  the  Worship  of  God. 

The  first,  to  realize  the  archetypal  idea  of  man,  the 
image  of  God,  the  likeness  to  Christ. 

The  second,  to  make  up  to  the  world  the  losses  caused 
by  death,  to  keep  the  world  in  perpetual  possession  of 
the  beauty  and  joy  of  youth,  and  to  secure,  through 
heredity,  the  gains  made  by  individual  effort  and  by 
divine  assistance  as  a  cumulative  inheritance. 

The  third,  to  mitigate  the  woes  and  promote  the  de- 
velopment of  mankind. 

The  fourth,  to  elevate  the  nature  and  supply  the  proper 
motive  and  inspiration  for  the  performance  of  all  duty. 

These  duties  are  enforced  by  divine  inculcation  and 
command.  Man  is  instructed  to  regard  God  as  his 
father,  and  therefore,  himself  as  a  child,  whose  great 
object  in  life  must  be  to  grow  unto  the  likeness  of  the 
father,  and  these  commands  are  given  him:  "Be  ye 
perfect  even  as  your  Father  in  heaven  is  perfect ' ' ; 
"  Be  fruitful  and  multiply,  and  replenish  the  earth  "  ; 
' '  Love  th}'  neighbor  as  thj-self  "  ;  "  Whosoever  will  be 
chief  among  you,  let  him  be  your  servant ;  even  as  the 
Son  of  man  came,  not  to  be  ministered  unto,  but  to 
minister,  and  to  give  his  life  a  ransom  for  many"  ; 
"  Thou  shalt  love  the  Lord  thy  God  with  all  thy  heart, 
'  Com.,  Introd.,  section  2. 


198  Mystical  Theories  of  the  State. 

and  with  all  thy  soul,  and  with  all  thy  mind,  and  with 
all  thy  strength  "  ;  "  Thou  shalt  worship  the  Lord  thy 
God,  and  Him  only  shalt  thou  serve."  In  order  to 
secure  the  fulfilment  of  these  duties,  appropriate  im- 
pulses, desires,  sympathies,  and  aspirations  have  been 
implanted  in  man,  and  these  are  the  forces  by  which 
all  social  organization  has  been  produced.  The  first 
desire,  in  the  order  of  nature,  is  the  desire  for  food, 
whereby  the  welfare  and  development  of  the  body  are 
promoted ;  and  even  in  the  lowest  stages  this  desire 
begets  the  idea  of  property,  especially  when  the  same 
object  will  serve  for  more  than  one  gratification.  The 
suckling  will  soon  claim  property  in  the  mother's 
breast.  If  the  animal  taken  in  the  chase  cannot  all  be 
eaten  at  once,  the  same  desire  that  prompted  to  the 
taking  of  it  will  prompt  to  the  preservation  of  it,  to 
satisfy  the  hunger  when  it  shall  return,  and  will  give 
the  idea  of  the  right  of  possession,  soon  to  be  followed 
by  the  general  idea  of  property,  founded  on  the  labor 
of  obtaining  that  which  satisfies  desire.  Now,  since 
man  is  moved  primarily  by  his  desires,  with  little  re- 
straint from  a  sense  of  right,  one  will  take  by  force  from 
another  whatever  he  may  want,  and  a  combination  of 
the  weak  will  be  made  for  protection  against  the  strong  ; 
while  natural  sympathies  will  act  as  co-operating  forces 
to  draw  men  into  association.  We  have  then,  as  the 
result  of  this  one  desire,  the  embryo  of  social  organi- 
zation and  government.  The  desire  which  prompts  to 
reproduction  will  tend  more  directly  to  this  end,  for 
the  co-operation  of  two  are  necessary  to  the  gratifica- 
tion of  that  desire.  If  there  are  as  many  women  as 
men,  and  numbers  of  them  are  not  at  once  available, 
the  man  will  be  prompted  to  retain  the  first  woman  to 
whom  he  has  been  united,  as  his  own.     The  woman 


Mystical  Theories  of  the  State.  199 

being  physically  the  weaker  will  be  governed  by  the 
man,  and  division  of  labor,  the  first  step  toward  civili- 
zation, will  begin.  While  reason  would  suggest,  to 
the  lowest  intellect,  that  there  would  be  greater  gain  to 
all  if  the  different  parts  of  labor  were  assigned  to  the 
persons  best  fitted  to  perform  it,  yet  the  division  is  de- 
termined at  first  by  mere  brute  force.  The  man  com- 
pels the  woman  to  relieve  him  of  all  toil  but  that  which 
is  easiest  and  most  agreeable  to  himself.  She  becomes, 
therefore,  his  burden-bearer  and  his  slave.  Here  we 
have  government,  with  sovereignty,  and  the  sover- 
eignty has  its  basis  in  mere  force.  Children,  when 
they  come,  will  form  a  new  element  in  the  social  or- 
ganization, but  the  sovereignty  of  superior  force  remains 
the  same,  softened  and  restrained,  in  some  degree,  by 
the  tenderness  of  the  parental  instinct. 

The  man,  observing  that  the  satisfaction  of  his  de- 
sires is  affected  b}^  powers  not  of  himself,  and  over 
which  he  has  no  control,  such  as  accidents  and  diseases, 
heat  and  cold,  drought  and  deluge,  projects  the  attri- 
butes of  his  own  nature  into  the  outer  world,  and  imag- 
ines it  to  be  governed  by  beings  of  like  passions  with 
himself,  only  greater  ;  and  he  fixes  upon  the  use  of 
certain  things,  and  the  performance  of  certain  rites, 
which  he  fancies  will  propitiate  or  defeat  these  powers. 
He  now  has  the  rudiments  of  a  religion,  but  it  contem- 
plates nothing  more  than  averting  bad  luck  and  bring- 
ing good  luck.  It  will  be  regarded  as  a  matter  of  the 
greatest  importance,  for  to  do  an^^thing  which  would 
bring  bad  luck  to  the  family,  clan,  or  tribe  would  be  a 
crime  worse  than  treason.  It  will  therefore  be  governed 
by  the  strictest  regulations,  and  those  regulations  will 
be  prescribed  by  the  sovereign,  the  possessor  of  the  pre- 
dominant force. 


200  Mystical  Theories  of  the  State. 


Deeds  of  valor,  done  by  the  man  himself,  or  by  others, 

he  delights  to  recount  to  his  fellowmen,  and  his  imagina- 
tion, stimulated  by  the  pleasure  derived  from  the  recol- 
lection, adds  embellishment  to  the  account.  The  story 
is  handed  down  to  his  posterity,  from  whom  it  receives 
further  embellishment,  till  finally  the  hero  is  deified  and 
associated  with  the  beneficent  or  the  destructive  powers 
of  nature  ;  and  the  religion  advances  from  fetichism  to 
mythology.  The  rites  of  religion  will  be  assigned  to 
particular  persons,  who  will  constitute  a  priesthood,  but 
still  the  religion  will  be  a  matter  of  State,  and  the  power 
of  regulating  it  will  be  in  the  hands  of  the  sovereign. 

The  rapacity  of  other  men  will  cause  families  to  unite 
in  tribes  for  mutual  protection,  while  all  the  social  im- 
pulses will  be  tending  to  the  same  end.  The  organiza- 
tion will  become  more  complex,  and  there  will  be  greater 
specialization  of  work.  The  possessor  of  the  sovereignty 
will  see  that  the  more  elaborate  and  comprehensive 
regulations,  now  necessary,  need  a  specialized  adminis- 
tration, and  the  final  arbiter,  force,  will  be  in  some  de- 
gree veiled  from  sight  behind  a  council  of  chiefs,  and  a 
series  of  customs  which  have  become  institutions. 

When  the  hunter  stage  gives  place  to  the  pastoral, 
the  idea  of  property  will  become  more  definite  ;  the 
family  will  become  the  patriarchate,  a  more  complex 
social  and  governmental  organization,  and  the  institu- 
tional limitations  to  the  exercise  of  sovereignty  or  brute 
force  will  be  multiplied. 

When  the  wandering  herdsman  ceases  to  subsist  en- 
tirely upon  the  produce  of  his  herds  and  the  spontane- 
ous products  of  the  earth,  and  begins  to  make  cereals 
a  part  of  his  subsistence,  he  will  take  up  his  abode  on 
the  fields  he  cultivates  ;  there  will  be  a  larger  need  of 
implements,  which  wnll  cause  a  more  extended  division 


\ 


Mystical  Theoi^ics  of  tJie  State.  201 

of  labor  and  a  more  extensive  barter  ;  society  and  gov- 
ernment will  go  on  in  its  development  to  a  still  higher 
stage.  From  this  stage  specialization  of  function  and 
organ  will  go  on  more  and  more  rapidly  ;  the  divisions 
of  labor  will  be  multiplied  ;  money,  and  after  that  the 
machinery  of  credit,  will  be  invented  to  facilitate  ex- 
changes ;  institutions  will  become  more  fixed  ;  the  gov- 
ernment, sharing  in  the  progress  and  carried  along  by 
the  same  laws  of  progress,  will  become  more  complex  ; 
its  various  functions  will  be  distributed  among  a  larger 
number  of  agencies,  and  force,  the  final  arbiter,  will  be 
so  far  withdrawn  from  view  that  many  will  find  difii- 
culty  in  telling  what  the  final  arbiter  they  now  call 
sovereignty  is,  or  where  it  resides. 

It  is  very  plain  now,  we  think,  that  the  resumption 
by  the  government  of  any  of  the  distributed  functions 
would  be  a  reversal  of  progress  ;  or,  if  there  were  con- 
ditions which  rendered  such  resumption  necessary,  it 
would  be  evidence  that  the  people  had  turned  about 
and  were  making  their  way  towards  barbarism.  It  is 
just  as  plain,  we  think,  that  to  set  up  a  hypostatized 
something — State,  or  whatever  else  it  may  be  called — 
as  the  original  possessor  of  all  governmental  power,  in 
order  to  justify  any  particular  act  of  the  so-called  sover- 
eignty, is  to  look  backwards.  If  we  should  admit  that 
the  whole  subject  of  education  and  religion  belonged 
originally  to  the  State,  the  admission  would  furnish  no 
ground  for  the  resumption  of  the  control  of  either,  or 
both,  in  whole,  or  in  part,  by  the  government  at  the 
present  time.  It  would  be  just  as  absurd  as  to  plead, 
what  embrj'ologists  tell  us  of  the  development  of  the 
individual  man,  that  he  passes  through  all  the  grada- 
tions of  animal  life,  from  that  of  the  amoeba  upwards, 
to  justify  his  swimming  to  shore  when  his  boat  is  sunk, 


202  Mystical  Theories  of  the  State. 

or  his  going  on  all  fours  through  a  narrow  tunnel  to 
escape  from  a  military  prison  in  which  he  is  held  cap- 
tive by  an  enemy.  The  possessor  of  the  force  necessary 
to  do  a  needed  thing  will  neither  ask  nor  offer  any  other 
justification  than  the  necessity. 

Sovereignty  is  nothing  but  preponderating  force, 
which,  among  civilized  peoples,  is  veiled  from  sight  and 
powerfully  restrained  by  a  wondrously  complex  and 
firmly  fixed  system  of  institutions.  There  is  no  ante- 
cedent existence  in  which  that  ghost  of  kingship,  sov- 
ereignty, resides.  The  State  is  not  an  eternal  idea  ;  nor 
is  it  an  autocthonous  something,  sprung  from  the  earth, 
as  Aphrodite  sprang  from  the  foam  of  the  sea ;  exist- 
ing before  all  government,  and  imparting  to  govern- 
ment all  its  powers. 

The  ever-present  political  problem  is,  not  the  discov- 
ery and  the  exposition  of  the  powers  of  a  supposed 
primordial  something  in  which  sovereignty  resides  ; 
but  the  bringing  of  enlightenment,  a  sense  of  justice, 
the  love  of  man  and  the  fear  of  God,  to  act  upon  the 
possessors  of  the  preponderating  force.' 

'  It  may  be  objected  that  the  genesis  of  the  State,  as  above 
given,  is  purely  imaginary,  entirely  unlike  the  actual  genesis  ; 
that  it  is  not  only  unhistorical,  but  is  in  contradiction  to  a  his- 
tory which  is  of  the  greatest  antiquity  and  of  the  highest  au- 
thority. According  to  that  history,  man  was  created  either  at 
the  highest  stage  of  civilization  ;  in  which  case  the  savages,  like 
the  vicious  and  criminal  classes  of  our  cities,  are  witnesses  to 
a  degeneration,  not  to  an  elevation  ;  or,  man  was  created  at  a 
middle  stage,  and  the  savages  are  witnesses  to  degeneration, 
while  the  civilized  peoples  are  witnesses  to  an  elevation.  It 
may  be  said,  also,  that  there  is  no  example  now  on  earth  of  the 
extremely  low  condition  which  the  scheme  requires  as  its  start- 
ing point. 

It   may  be  answered  that  the  science  of  anthropology  has 


Religious  A7nendment.  203 

CHAPTER  V. 

RELIGIOUS    AMENDMENT    OF    THE    CONSTITUTION    OF 
THE  UNITED  STATES. 

The  omission  of  all  recognition  of  the  existence  of 
God  and  of  the  Christian  religion  in  the  Constitution 
of  the  United  States  has  been  regarded  by  many  worthy 
citizens  as  a  very  serious  defect,  if  not  a  grievous  sin. 
An  organization  has  been  formed  for  the  purpose  of  se- 
curing an  amendment  to  the  Preamble  of  the  Constitu- 
tion which,  it  is  supposed,  will  remedy  the  defect  and 
avert  the  evil  consequences  of  the  sin. 

It  appears  that  the  placing  of  a  recognition  of  the 
Divine  Being  in  the  Constitution,  which  is  now  deemed 
to  be  a  matter  of  so  great  importance,  was  not  spoken 

found,  in  the  geological  and  archaeological  fields  of  its  investiga- 
tion, almost  conclusive  proof  that  the  low  stage  in  question  did 
exist,  and  was  prevalent  in  pre-historic  times.  This  fact,  at  the 
one  extreme,  and  our  high  civilization,  at  the  other,  with  every 
gradation  between,  warrants  the  belief  that  the  scheme,  as  pre- 
sented, does  set  forth  the  actual  course  of  human  progress. 

In  a  scientific  investigation,  whether  it  be  of  the  divine  works, 
or  of  the  divine  word,  our  only  concern  is  the  ascertainment  of 
facts,  not  the  bearing  of  facts,  in  the  one  domain,  upon  facts  in 
the  other.  If,  upon  independent  grounds,  we  believe  the  Bible 
to  be  the  word  of  God,  that  question  is  settled  ;  it  is  no  longer 
an  open  one.  If  it  be  not  settled,  very  much  more  than  a  few 
instances  of  seeming  conflict  between  Science  and  Revelation 
will  have  to  be  taken  into  consideration  ;  and  a  range  of  learn- 
ing and  scientific  investigation,  much  wider  than  the  field  of 
natural  science,  will  have  to  be  traversed,  in  order  to  settle  it. 
A  seeming  conflict  will  only  show  that  there  has  been  a  fault 
in  the  ascertainment  of  facts  ;  and  the  thing  to  be  done  in  such 
a  case,  is  the  discovery  of  the  fault ;  not  the  denunciation  of 
Science  on  the  one  hand,  nor  the  rejection  of  the  Bible  on  the 
other. 


204  Religious  A^nendnie^it. 

of  in  the  convention,  nor  even  thought  of  outside  of 
the  convention,  until  after  the  Constitution  had  been 
completed  and  submitted  for  adoption.  It  is  said  that 
the  Rev.  Dr.  John  Rogers,  an  eminent  divine  of  the 
Presbyterian  Church,  in  New  York  City,  inquired  of 
Alexander  Hamilton  on  his  return  from  the  convention 
why  some  suitable  recognition  of  the  Almighty  had 
not  been  placed  in  the  Constitution,  and  that  the  reply 
was,  "  Indeed,  Doctor,  we  forgot  it." 

A  statement  made  by  lyUther  Martin,  a  member  of 
the  convention  from  Maryland,  after  its  adjournment, 
has  been  cited  to  show  that  the  matter  had  not  been 
entirely  forgotten,  viz.  :  "  However,  there  were  some 
members  so  unfashionable  as  to  think  that  a  belief  of 
the  existence  of  a  Deity  and  a  state  of  future  rewards 
and  punishments  would  be  some  security  for  the  good 
conduct  of  our  rulers,  and  that  in  a  Christian  country 
it  would  be  at  least  decent  to  hold  out  some  distinction 
between  the  professors  of  Christianity  and  downright 
infidelity  or  paganism."  This  statement,  however, 
taken  in  its  connection  cannot  serve  the  purpose  for 
which  it  is  cited.  Mr.  Martin  upon  his  return  addressed 
the  House  of  Delegates  of  Maryland,  giving  a  long  and 
elaborate  discussion  of  the  work  of  the  convention. 
Among  other  things  he  said  :  "  The  part  of  the  system 
which  provides  that  no  religious  test  shall  be  required  as 
a  qualification  to  any  office  or  public  trust  under  the 
United  States  was  adopted  by  a  great  majority  of  the 
convention  and  without  much  debate.  However,  there 
were  some  members  so  unfashionable,"  etc' 

Mr.  Martin  was  on  other  grounds  strenuously  op- 
posed to  the  adoption  of  the  Constitution  ;  he  did  not 
sign  it,  and  the  probability  is  that  this  objection  to  it 
>  Elliot's  Debates,  vol.  i.,  pp.  385,  386. 


Religious  Amendment.  205 

was  an  after-thought.  At  any  rate  it  is  evident  that 
his  objection  was  not  to  the  omission  of  a  bare  recog- 
nition of  the  existence  and  authority  of  the  Divine 
Being,  but  the  omission  of  something  which  would 
have  been  far  different  in  its  practical  effect.  The  se- 
curity for  the  good  conduct  of  our  rulers  which  he 
thought  necessary  was  a  religious  test.  It  was  by  this 
means  the  distinction  between  the  professors  of  Chris- 
tianity and  downright  infidelitj^  or  paganism,  which  he 
thought  necessary  to  decency,  was  to  be  made. 

If  it  be  true  as  Hamilton  is  reported  to  have  said  it 
was,  that  a  recognition  of  the  Almighty  was  omitted 
from  the  Constitution  through  mere  oversight,  neverthe- 
less the  oversight  cannot  but  be  regarded  as  remarka- 
ble, and  every  Christian  citizen  will  be  ready  to  ask 
how  it  happened  to  occur.  An  examination  of  the 
circumstances  in  which  the  Constitution  was  formed 
will  furnish  ample  explanation  of  the  fact,  and  will 
also  afford  entire  relief  from  even  a  suspicion  that  the 
omission  was  made  with  any  anti-Christian  purpose. 

I.  It  is  to  be  remarked  in  the  first  place  that  the 
public  mind,  of  which  the  Constitutional  convention 
was  a  reflection,  was  especially  intent  upon  guarding 
against  the  evils  of  a  union  between  Church  and  State, 
and  for  that  reason  gave  too  little  attention,  perhaps, 
to  the  opposite  evils.  The  lessons  of  history,  especially 
as  connected  with  the  founding  of  some  of  the  colo- 
nies, aroused  a  fear  of  the  complication  of  religion  with 
the  civil  government ;  and  to  this  fear  the  omission 
must  be,  in  large  measure,  attributed. 

It  cannot  be  denied  that  the  infidelity  prevailing  in 
France  at  that  time  had  become  fashionable  with  a  par- 
ticular party  in  this  country,  the  party  whose  political 
predilections  were  with  the  French.     It  was  not  fash- 


2o6  Religious  Amendment. 

ionable,  however,  with  that  large  and  very  respectable 
party  which  cherished  an  admiration  for  the  British 
Constitution,  and  desired  to  establish  a  modification  of 
that  Constitution  in  this  country.  The  Christian  sen- 
timent of  the  country  was  still  so  prevalent  and  power- 
ful as  to  render  it  impolitic  for  the  unbeliever  to  show 
any  wanton  disrespect  to  it.  This  will  appear  from  the 
following  letter  of  Benjamin  Franklin,  who  was  reputed 
to  be  a  deist  and  a  friend  of  Thomas  Paine,  the  person 
to  whom  the  letter  is  supposed  to  have  been  addressed  : ' 

' '  I  have  read  your  manuscript  with  some  attention. 
By  the  argument  it  contains  against  a  particular  Provi- 
dence, though  you  allow  a  general  Providence,  you 
strike  at  the  foundations  of  all  religion.  For  without 
the  belief  of  a  Providence  that  takes  cognizance  of, 
guards  and  guides,  and  may  favor  particular  persons, 
there  is  no  motive  to  worship  a  deity,  to  fear  his  dis- 
pleasure, or  to  pray  for  his  protection.  I  will  not  enter 
into  any  discussion  of  your  principles,  though  you  seem 
to  desire  it.  At  present  I  shall  only  give  you  my  opin- 
ion, that,  though  your  reasonings  are  subtle  and  may 
prevail  with  some  readers,  you  will  not  succeed  so  as 
to  change  the  general  sentiments  of  mankind  on  that 
subject,  and  the  consequence  of  printing  this  piece  will 
be  a  great  deal  of  odium  drawn  upon  yourself,  mischief 
to  you  and  no  benefit  to  others.  He  that  spits  against 
the  wind  spits  in  his  own  face. 

"  But  were  you  to  succeed,  do  you  imagine  any  good 
would  be  done  by  it  ?     You  yourself  may  find  it  easy 

'  Sparks,  in  a  note,  says,  "  This  letter  was  first  published  by 
William  Temple  Franklin,  but  without  the  name  of  the  person 
to  whom  it  was  directed.  ...  It  is  supposed  to  have  been  writ- 
ten to  Thomas  Paine,  and  the  circumstances  are  such  as  to  ren- 
der this  supposition  in  the  highest  degree  probable." 


Religious  Amendment.  207 

to  live  a  virtuous  life  without  the  assistance  afforded  by 
religion  ;  yoxx  having  a  clear  perception  of  the  advan- 
tages of  virtue  and  the  disadvantages  of  vice,  and  pos- 
sessing strength  of  resolution  sufficient  to  enable  you 
to  resist  common  temptations.  But  think  how  great  a 
portion  of  mankind  consists  of  weak  and  ignorant  men 
and  women,  and  of  inexperienced,  inconsiderate  youth 
of  both  sexes,  who  have  need  of  the  motives  of  religion 
to  restrain  them  from  vice,  to  support  their  virtue,  and 
retain  them  in  the  practice  of  it  till  it  becomes  habitual, 
which  is  the  great  point  for  its  seciurity.  And  perhaps 
you  are  indebted  to  her  originally,  that  is,  to  your  reli- 
gious education,  for  the  habits  of  virtue  upon  which  you 
now  justly  value  yourself  You  might  easily  display 
your  excellent  talents  of  reasoning  upon  a  less  hazardous 
subject,  and  thereby  obtain  a  rank  with  our  most  dis- 
tinguished authors.  For  among  us  it  is  not  necessary, 
as  among  the  Hottentots,  that  a  youth  to  be  raised  into 
the  company  of  men  should  prove  his  manhood  by  beat- 
ing his  mother. 

"  I  would  advise  you,  therefore,  not  to  attempt  un- 
chaining the  tiger,  but  to  burn  this  piece  before  it  can  be 
seen  b}-  any  other  person  ;  whereby  you  will  save  j^our- 
self  a  great  deal  of  mortification  by  the  enemies  it  may 
raise  against  you,  and  perhaps  a  good  deal  of  regret  and 
repentance.  If  men  are  so  wicked  with  religion,  what 
would  they  be  if  wit/iout  it.  I  intend  this  letter  as  a 
proof  of  my  friendship  and  therefore  add  no  professions 
to  it,  but  subscribe  simply 

"Yours,  B.Franklin."' 

Judge  Story  says,  in  his  Commentary  on  tJie  Consti- 
tution :    ' '  Probably  at  the  time  of  the  adoption  of  the 

^  Franklin's  IVritmgs.     Sparks,  vol.  x.,  pp.  281-282. 


2o8  Religious  Amendment. 

Constitution  and  of  the  amendment  to  it,  now  under 
consideration  (Congress  shall  make  no  law  respecting 
an  establishment  of  religion,  or  prohibiting  the  free 
exercise  thereof),  the  general,  if  not  the  universal  senti- 
ment in  America  was  that  Christianity  ought  to  receive 
encouragement  from  the  State,  so  far  as  it  is  not  incom- 
patible with  the  private  rights  of  conscience  and  the 
freedom  of  religious  worship.  An  attempt  to  level  all 
religions  and  to  make  it  a  matter  of  State  policy  to  hold 
all  in  utter  indifference  would  have  created  universal 
disapprobation,  if  not  universal  indignation."  ' 

Judge  Story  lived  so  near  to  the  time  of  the  adoption 
of  the  Constitution  that  these  words  may  be  taken  as 
not  merely  an  opinion  formed  upon  a  careful  study  of 
the  materials  of  history,  but  as  at  least  hearsay  testi- 
mony to  the  fact. 

It  cannot  be  maintained  that  there  was  in  the  general 
public  any  demand  either  open  or  tacit,  that  an  athe- 
istic or  anti-Christian  character  should  be  given  to  the 
Constitution  ;  nor  can  it  be  maintained  that  in  the  con- 
vention there  was  a  covert  purpose  to  impart  to  it  such 
a  character.  The  refusal  of  the  convention  to  adopt 
the  resolution  offered  by  Dr.  Franklin,  proposing  that 
the  daily  sessions  be  opened  with  prayer,  cannot  in  view 
of  the  whole  record  of  the  case,  which  we  here  give, 
be  taken  as  revealing  an  irreligious  bias  in  the  conven- 
tion. 

"Dr.  Franklin: — 'Mr.  President,  the  small  pro- 
gress we  have  made  after  four  or  five  weeks'  close  at- 
tendance and  continual  reasonings  with  each  other  ; 
our  different  sentiments  on  almost  every  question, 
several  of  the  last  producing  as  many  noes  as  ayes,  is, 
metliinks,  a  melancholy  proof  of  the  weakness  of  the 
'  P.  700. 


Religious  Amendment.  209 

human  understanding.  We  indeed  seem  to  feel  our 
want  of  political  wisdom,  since  we  have  been  running 
about  in  search  of  it.  We  have  gone  back  to  ancient 
history  for  models  of  government,  and  examined  the 
different  forms  of  those  republics  which  having  been 
formed  with  the  seeds  of  their  own  dissolution,  now  no 
longer  exist.  And  we  have  viewed  modern  States  all 
round  Europe,  but  find  none  of  their  Constitutions  suit- 
able to  our  circumstances. 

"  *  In  this  situation  of  this  Assembly,  groping,  as  it 
were,  in  the  dark  to  find  political  truth,  and  scarce  able 
to  distinguish  it  when  presented  to  us,  how  has  it  hap- 
pened, Sir,  that  w^e  have  not  hitherto  once  thought  of 
humbly  appl3nng  to  the  Father  of  lights  to  illuminate 
our  understandings.  In  the  beginning  of  the  contest 
with  Great  Britain,  when  we  were  sensible  of  danger, 
we  had  daily  prayer  in  this  room  for  the  divine  protec- 
tion. Our  prayers.  Sir,  were  heard  and  they  were 
graciously  answered.  All  of  us  who  were  engaged  in 
the  struggle  must  have  observed  frequent  instances  of  a 
superintending  Providence  in  our  favor.  To  that  kind 
Providence  we  owe  this  opportunity  of  consulting  in 
peace  on  the  means  of  establishing  our  future  national 
felicity.  And  have  we  now  forgotten  that  powerful 
friend?  I  have  lived.  Sir,  a  long  time,  and  the  longer 
I  live  the  more  convincing  proofs  I  see  of  this  truth, 
that  God  governs  in  the  affairs  of  vien.  And  if  a  spar- 
row cannot  fall  to  the  ground  without  His  notice,  is  it 
probable  that  an  Empire  can  rise  without  His  aid  ?  We 
have  been  assured.  Sir,  in  the  sacred  writings,  that 
'  except  the  Lord  build  the  house  they  labor  in  vain 
that  build  it.'  I  firmly  believe  this,  and  I  also  believe 
that  without  His  concurring  aid  we  shall  succeed  in 
this  political  building  no  better  than  the  builders  of 


2 1  o  Religious  Ainejidmenf. 

Babel.  We  shall  be  divided  by  our  little  partial  local 
interests  ;  our  projects  will  be  confounded,  and  we  our- 
selves shall  become  a  reproach  and  by-word  down  to 
future  ages.  And  what  is  worse,  mankind  may  here- 
after from  this  unfortunate  instance  despair  of  establish- 
ing governments  by  human  wisdom  and  leave  it  to 
chance,  war,  and  conquest. 

" '  I  therefore  beg  leave  to  move  that  hereafter  prayers, 
imploring  the  assistance  of  Heaven  and  its  blessings 
on  our  deliberations,  be  held  in  this  assembly  every 
morning  before  we  proceed  to  business,  and  that  one  or 
more  of  the  clergy  of  this  city  be  requested  to  oflBciate 
in  that  service." 

"  Mr,  Sherman  seconded  the  motion.  Mr.  Hamilton 
and  several  others  expressed  their  apprehension  that, 
however  proper  such  a  resolution  might  have  been  at 
the  beginning  of  the  convention,  it  might  at  this  late 
day,  in  the  first  place,  bring  on  it  some  disagreeable 
animadversions ;  and  in  the  second  place,  lead  the 
public  to  believe  that  the  embarrassments  and  dissen- 
tions  within  the  convention  had  suggested  the  measure. 
It  was  answered  by  Dr.  Franklin,  Mr.  Sherman,  and 
others,  that  the  past  omission  of  a  duty  could  not 
justify  a  further  omission  ;  that  the  rejection  of  such 
a  proposition  would  expose  the  convention  to  more  un- 
pleasant animadversions  than  the  adoption  of  it ;  and 
that  the  alarm  out  of  doors  that  might  be  excited  for 
the  state  of  things  within  would  at  least  be  as  likely 
to  do  good  as  ill. 

' '  Mr.  Williamson  observed  that  the  true  cause  of  the 
omission  could  not  be  mistaken.  The  convention  had 
no  funds. 

' '  Mr.  Randolph  proposed,  in  order  to  give  a  favorable 
aspect  to  the  measure,  that  a  sermon  be  preached  at 


Religious  A  mendment.  2 1 1 

the  request  of  the  convention  on  the  fourth  of  July,  the 
Anniversarj'  of  Independence,  and  thenceforth  prayers, 
etc.,  be  read  in  the  convention  every  morning. 

"  Dr.  Franklin  seconded  this  motion.  And  after  sev- 
eral unsuccessful  attempts  for  silently  postponing  this 
matter  by  adjourning,  the  adjournment  was  at  length 
carried  without  any  vote  on  the  motion,  Thursday, 
June  28th."  ' 

Unless  the  three  reasons  against  the  adoption  of  Dr. 
Franklin's  motion  can  be  proved  to  have  been  without 
ground,  and  to  have  been  disingenuously  given,  the 
defeat  of  that  motion  cannot  be  regarded  as,  in  itself,  a 
sufficient  proof  that  an  anti-Christian  bias  prevailed  in 
the  convention,  and  that  the  members,  controlled  by 
such  a  bias,  purposely  made  the  Constitution  what  it 
is  now  charged  with  being,  an  atheistic  document. 

In  at  least  two  of  the  State  conventions  objection 
was  made  to  the  last  clause  of  Article  VI.  of  the  Con- 
stitution, prohibiting  all  religious  tests  and  qualifica- 
tions to  any  office  or  public  trust  under  the  United 
States.  It  will  be  seen  from  the  arguments  urged  in 
favor  of  the  prohibition,  and  from  the  character  of  the 
persons  contending  for  it,  three  of  them  being  clergy- 
men, that  the  motive  which  prompted  the  proposing 
and  adopting  of  that  prohibition  was  a  fear  of  the  evils 
that  might  result  from  a  religious  establishment,  and  a 
desire  to  give  all  citizens  equal  rights,  with  eligibility  to 
all  offices  and  public  trusts  without  discrimination  on 
account  of  their  religious  belief  or  unbelief.  There  is 
no  evidence  whatever  of  an  intention  to  disparage  Chris- 
tianity or  to  make  an  atheistic  Constitution  ;  and  it  is 

"^  Journal  of  the  Federal  Convention.  Kept  by  James  Madisou. 
Edited  by  E.  H.  Scott.  Chicago,  Albert  Scott  &  Co.  1S93,  pp. 
259-261. 


2 1 2  Religious  Amendment. 

fair  to  assume  that  if  there  was  no  such  intention  in 
this  matter  that  there  was  none  in  the  omission  of  a 
recognition  of  the  existence  of  God  and  of  the  authority 
of  the  lyord  Jesus  Christ, 

Convention  of  Massachusetts. — Mr,  Parsons,  of 
Newburyport,  said:  "It  has  been  objected  that  the 
Constitution  provides  no  religious  test  by  oath,  and  we 
may  have  in  power  unprincipled  men,  atheists  and 
pagans.  No  man  can  wish  more  ardently  than  I  do 
that  all  our  public  offices  may  be  filled  by  men  who 
fear  God  and  hate  wickedness,  but  it  must  remain  with 
the  electors  to  give  the  government  this  security.  An 
oath  will  not  do  it.  Will  an  unprincipled  man  be  en- 
tangled by  an  oath  ?  Will  an  atheist  or  a  pagan  dread 
the  vengeance  of  the  Christian's  God,  a  Being  in  his 
opinion  a  creature  of  fancy  and  credulity  ?  It  is  a 
solecism  in  expression.  No  man  is  so  illiberal  as  to 
wish  the  confining  places  of  honor  or  profit  to  any  one 
sect  of  Christians,  but  what  security  is  it  to  the  govern- 
ment that  any  public  officer  shall  swear  that  he  is  a 
Christian  ?  .  .  .  Sir,  the  only  evidence  we  can 
have  of  the  sincerity  of  a  man's  religion  is  a  good  life, 
and  I  trust  that  such  evidence  will  be  required  of  every 
candidate  by  every  elector, ' '  ' 

"  In  the  conversation  of  Thursday  on  the  Sixth 
Article  ,  .  .  several  gentlemen  urged  that  it  was 
a  departure  from  the  principles  of  our  forefathers 
who  came  here  for  the  preservation  of  their  religion  ; 
and  that  it  would  admit  deists,  atheists,  etc,  into  the 
general  government ;  and  people  being  apt  to  imitate 
the  examples  of  the  court  a  corruption  of  morals  ensue. 
Gentlemen  on  the  other  side  applauded  the  liberality  of 
the  clause  and  represented  in  striking  colors  the  impro- 
•  Elliot's  Debates,  vol.  ii.,  p.  90. 


Convention  of  Massachusetts.  2  1 3 

priety  of,  and  almost  impiety  of  the  requisition  of  a  test 
as  practised  in  Great  Brittain  and  elsewhere.  In  this 
conversation  the  following  is  the  substance  of  the 
obser\^ation  of  Rev.  Mr.  Shute  : 

"  '  Mr.  President,  to  object  to  the  latter  part  of  the 
paragraph  under  consideration  which  excludes  a  re- 
ligious test  is  I  am  sensible  very  popular,  for  the  most 
of  men  somehow  are  rigidly  tenacious  of  their  own  senti- 
ments in  religion,  and  disposed  to  impose  them  upon 
others  as  the  standard  oi  truth.  If  in  my  sentiments 
on  the  point  in  view,  I  should  differ  from  some  in  this 
honorable  body  I  only  wish  from  them  the  exercise  of 
that  candor  with  which  true  religion  is  apt  to  inspire 
the  honest  and  well-disposed  mind. 

"  '  To  establish  a  religious  test  as  a  qualification  for 
office  in  the  proposed  Federal  Constitution  it  appears 
to  me,  Sir,  would  be  attended  with  injurious  conse- 
quences to  some  individuals  and  with  no  advantage  to 
the  whole.  By  injurious  consequences  to  some,  I  mean 
that  some  who  in  every  other  respect  are  qualified  to 
fill  some  important  post  in  government  will  be  ex- 
cluded, by  their  not  being  able  to  stand  the  religious 
test,  which  I  take  to  be  a  privation  of  a  part  of  their 
civil  rights. 

"  '  Nor  is  there  to  me  any  conceivable  advantage.  Sir, 
that  would  result  to  the  whole  from  such  a  test.  Un- 
principled and  dishonest  men  will  not  hesitate  to  sub- 
scribe to  anything  that  may  open  the  way  for  their 
advancement,  and  put  them  in  a  situation  the  better  to 
execute  their  base  and  iniquitous  designs.  Honest 
men  alone,  therefore,  however  well  qualified  to  serve 
the  public  would  be  excluded  by  it  and  their  country 
be  deprived  of  the  benefit  of  their  abilities. 

"  '  In  this  great  and  extensive  empire  there  is  and  will 


2 1 4  Religious  Amendment. 

be  a  great  variety  of  sentiments  in  religion  among  its 
inhabitants.  Upon  the  plan  of  religious  test  the  ques- 
tion I  think  must  be,  Who  shall  be  excluded  from 
National  trusts.  Whatever  our  bigotry  may  suggest,  the 
dictates  of  candor  and  equity,  I  conceive,  will  be  None. 

' '  '  Far  from  limiting  my  charity  and  confidence  to 
men  of  my  own  denomination  in  religion,  I  suppose  and 
I  believe.  Sir,  that  there  are  worthy  characters  among 
men  of  every  denomination  ; — among  Quakers,  the 
Baptists,  Church  of  England,  the  Papists,  and  even 
among  those  that  have  no  other  guide  in  the  way  of 
virtue  and  heaven  than  the  dictates  of  natural  religion. 

"  '  I  must  therefore  think,  Sir,  that  the  proposed  plan 
of  government  in  this  particular  is  wisely  constructed  ; 
that  as  all  have  an  equal  claim  to  the  blessings  of 
the  government  under  which  they  live  and  which  they 
support,  so  none  should  be  excluded  from  them  for 
being  of  any  particular  denomination  in  religion, 

"  'The  presumption  is  that  the  eyes  of  the  people 
will  be  upon  the  faithful  in  the  land,  and  from  a  regard 
to  their  own  safety  they  will  choose  for  their  rulers  men 
of  known  abilities,  of  known  probity,  of  good  moral 
characters.  The  apostle  Peter  tells  us  that  God  is  no 
respecter  of  persons,  but  in  every  nation  he  that  feareth 
Him  and  worketh  righteousness  is  acceptable  to  Him. 
And  I  know  of  no  reason  why  men  of  such  a  character 
in  a  community  of  whatever  denomination  in  religion, 
cczteris  paribus,  with  other  suitable  qualifications  should 
not  be  acceptable  to  the  people,  and  why  they  may  not 
be  employed  by  them  with  safety  and  advantage  in 
the  important  offices  of  the  government.  The  exclu- 
sion of  any  religious  test,  therefore,  clearly  appears  to 
me,  Sir,  to  be  in  favor  of  its  adoption.'  ' 
'  Ibid.,  pp.  1 1 7- 1 19. 


Convention  of  Massachusetts.  2  i  5 

"  Rev.  Mr.  Payson  :  '  Mr.  President,  after  what 
has  been  observ^ed  relating  to  a  rehgious  test  by  gentle- 
men of  acknowledged  abilities,  I  did  not  expect  that  it 
would  again  be  mentioned  as  an  objection  to  the  pro- 
posed Constitution,  that  such  a  test  was  not  required 
as  a  qualification  for  office.  Such  were  the  abilities 
and  integrity  of  the  gentlemen  who  constructed  the 
Constitution  as  not  to  admit  of  the  presumption  that 
they  would  have  betrayed  so  much  vanity  as  to  at- 
tempt to  erect  bulwarks  and  barriers  to  the  throne  of 
God.  Relying  on  the  candor  of  this  convention,  I  will 
take  the  liberty  to  express  my  sentiments  on  the  nature 
of  a  religious  test  and  will  endeavor  to  do  it  with  such 
propositions  as  will  meet  with  the  approbation  of  every 
mind. 

"  '  The  great  object  of  religion  being  God  supreme, 
and  the  seat  of  religion  in  man  being  the  heart  or  con- 
science, i.  e. ,  the  reason  God  has  given  us  employed  on 
our  moral  actions  in  their  most  important  consequences, 
as  related  to  the  tribunal  of  God,  hence  I  infer  that 
God  alone  is  the  God  of  the  conscience,  and  conse- 
quently attempts  to  erect  human  tribunals  for  the  con- 
sciences of  men  are  impious  encroachments  upon  the 
prerogatives  of  God.  Upon  these  principles,  had  there 
been  a  religious  test  as  a  qualification  for  office,  it 
would  in  my  opinion  have  been  a  great  blemish  upon 
the  instrument. ' ' 

"Rev.  Mr.  Backus:  'Mr.  President,  I  have  said 
very  little  in  this  honorable  convention,  but  I  must  beg 
leave  to  offer  a  few  thoughts  upon  some  points  in  the 
Constitution  proposed  to  us,  and  I  shall  begin  with  the 
excluding  of  any  religious  test.  Many  appear  to  be  much 
concerned  about  it,  but  nothing  is  more  evident,  both  in 
'  Ibid.,  p.  T20. 


2 1 6  Religious  Aineridment. 


reason  and  the  Holy  Scriptures,  than  that  religion  is 
ever  a  matter  between  God  and  individuals,  and  there- 
fore no  man  or  men  can  impose  any  religious  test  with- 
out invading  the  essential  prerogatives  of  the  I/)rd  Jesus 
Christ.  Ministers  first  assumed  that  power  under  the 
Christian  name,  and  then  Constantine  approved  of  the 
practice  when  he  adopted  the  profession  of  Christianity 
as  an  engine  of  State  policy.  And  let  the  history  of 
all  nations  be  searched  from  that  day  to  this,  and  it  will 
appear  that  the  imposing  of  religious  tests  hath  been 
the  greatest  engine  of  tyranny  in  the  world.  And  I 
rejoice  to  see  so  many  gentlemen  who  are  now  giving 
in  their  rights  of  conscience  in  this  great  and  important 
matter.  Some  serious  minds  discover  a  concern  lest  if 
all  religious  tests  be  excluded  the  Congress  would  here- 
after establish  Popery  or  some  other  tyrannical  way  of 
worship.  But  it  is  most  certain  that  no  such  way 
of  worship  can  be  established  without  any  religious 
test.'  "  ■ 

The  Convention  of  North  Carolina. — "  Mr. 
He;nry  Abbot  :  '  Some  are  afraid,  Mr.  Chairman,  that 
should  the  Constitution  be  received  they  would  be  de- 
prived of  the  privilege  of  worshipping  God  according  to 
their  consciences  ;  which  would  be  taking  from  them  a 
benefit  they  enjoy  under  the  present  Constitution.  They 
wish  to  know  if  their  religious  and  civil  liberties  would 
be  secure  under  this  system,  or  whether  the  general  gov- 
ernment may  not  make  laws  infringing  their  religious 
liberties.  The  worthy  member  from  Edenton  men- 
tioned sundry  political  reasons  why  treaties  should  be 
the  supreme  law  of  the  land.  It  is  feared  that  by  the 
power  of  making  treaties  they  might  make  a  treaty 
engaging  with  foreign  powers  to  adopt  the  Roman 
'  Ibid.,  pp.  148,  149. 


Convention  of  North  Carolina.  2 1 7 

Catholic  religion  in  the  United  States,  which  would 
prevent  the  people  from  worshipping  God  according  to 
their  own  consciences.  The  worth}-  member  from  Hali- 
fax has  in  some  measure  satisfied  my  mind  on  this  sub- 
ject, but  others  may  be  dissatisfied.  Many  wish  to 
know  what  religion  shall  be  established.  I  believe  a 
majority  of  the  community  are  Presbyterians.  I  am 
for  m}'  part  against  any  exclusive  establishment,  but  if 
there  were  any  I  would  prefer  the  Episcopal.  The  ex- 
clusion of  religious  tests  is  by  many  thought  dangerous 
and  impolitic.  They  suppose  that  if  there  be  no  re- 
ligious test  required  pagans,  deists,  and  Mahometans 
might  obtain  ofiice  among  us,  and  that  the  senators  and 
representatives  might  all  be  pagans.  Every  person  em- 
ployed b}'  the  general  and  State  governments  is  to  take 
an  oath  to  support  the  former.  Some  are  desirous  to 
know  how  and  by  whom  they  are  to  swear,  since  no 
religious  tests  are  required  ;  whether  they  are  to  swear 
by  Jupiter,  Juno,  Minerva,  Proserpina,  or  Pluto.  We 
ought  to  be  suspicious  of  our  liberties.  We  have  felt 
the  effects  of  oppressive  measures,  and  know  the  happ3^ 
consequences  of  being  jealous  of  our  rights.  I  would 
be  glad  if  some  gentleman  would  endeavor  to  obviate 
these  objections  in  order  to  satisfy  the  religious  part  of 
the  society.  Could  I  be  convinced  that  the  objections 
were  well  founded,  I  would  then  declare  my  opinion 
against  the  Constitution.' 

"Mr.  Iredei.1,  :  '  Mr.  Chairman,  nothing  is  more 
desirable  than  to  remove  the  scruples  of  any  gentleman 
on  this  interesting  subject.  Those  concerning  religion 
are  entitled  to  particular  respect.  I  did  not  expect  any 
objection  to  this  particular  regulation,  which  in  my 
opinion  is  calculated  to  prevent  evils  of  the  most  per- 
nicious consequences  to  society.     Every  person  in  the 


2i8  Religious  Amendvient. 

least  conversant  with  the  history  of  mankind  knows 
what  dreadful  mischiefs  have  been  committed  by  reli- 
gious persecutions.  Under  the  color  of  religious  tests, 
the  utmost  cruelties  have  been  exercised.  Those  in 
power  have  generally  considered  all  wisdom  centred  in 
themselves  ;  and  that  they  alone  had  a  right  to  dictate 
to  the  rest  of  mankind  ;  and  that  all  opposition  to  their 
tenets  was  profane  and  impious.  The  consequences  of 
this  intolerant  spirit  has  been  that  each  Church  has  in 
turn  set  itself  up  against  every  other,  and  persecutions 
and  wars  of  the  most  implacable  and  bloody  nature 
have  taken  place  in  every  part  of  the  world. 

' '  '  The  power  to  make  treaties  can  never  be  supposed 
to  include  the  right  to  establish  a  foreign  religion  among 
ourselves,  though  it  might  authorize  a  toleration  of 
others.  But  it  is  objected  that  the  people  of  America 
may  perhaps  choose  representatives  who  have  no  reli- 
gion at  all,  and  that  pagans  and  Mahometans  may  be 
admitted  into  offices.  But  how  is  it  possible  to  exclude 
any  set  of  men  without  taking  away  that  principle  of 
religious  freedom  which  we  ourselves  so  warmly  con- 
tend for  ?  This  is  the  foundation  on  which  persecution 
has  been  raised  in  every  part  of  the  world.  The  peo- 
ple in  power  were  always  right  and  everybody  else 
wrong.  If  you  admit  the  least  difference,  the  door  to 
persecution  is  opened.  Nor  would  it  answer  the  pur- 
pose, for  the  worst  part  of  the  excluded  sects  would 
comply  with  the  test,  and  the  best  men  only  kept  out 
of  our  counsels.  But  it  is  never  to  be  supposed  that  the 
people  of  America  will  trust  their  dearest  rights  to  per- 
sons who  have  no  religion  at  all  or  a  religion  materially 
different  from  their  own. 

"  '  It  would  be  happy  for  mankind  if  religion  was  per- 
mitted to  take  its  own  course  and  maintain  itself  by 


Religions  A  me7idment.  219 

the  excellence  of  its  own  doctrines.  The  divine  au- 
thor of  our  religion  never  wished  for  its  support  by 
worldly  authority.  Has  he  not  said  that  the  gates  of 
hell  shall  not  prevail  against  it  ?  It  made  much  greater 
progress  for  itself  than  when  supported  by  the  greatest 
authority  on  earth.'  "  ' 

These  expressions,  coming  as  they  do  from  the  oppo- 
site ends  of  the  Republic,  indicate  the  purpose  that  was 
uppermost  in  the  public  mind  in  forming  and  adopting 
the  Constitution,  and  its  prevalence.  One  party  desired 
a  religious  test  that  would  exclude  not  only  atheists, 
pagans,  and  Mahometans,  but  Roman  Catholics  also, 
from  all  offices  and  public  trusts  under  the  United 
States.  The  other  party,  advocating  the  largest  reli- 
gious freedom,  and  regarding  it  as  fraught  with  no 
perils  to  the  public  welfare,  desired  a  Constitution  so 
formed  that  every  citizen  qualified  to  serve  the  people 
in  a  political  capacitj'  might  be  eligible  to  ofiice  ;  a  Con- 
stitution so  formed  that  an  Aristides,  a  Cato,  a  Marcus 
Aurelius,  or  a  Frederick  II.  would  not  be  barred  if  the 
people  should  desire  their  service  in  office.  There  was 
no  one  seeking  to  place  in  the  Constitution  a  bare  and 
impotent  recognition  of  the  existence  of  God.  Nobody 
seems  to  have  thought  of  it.  Had  the  latter  party  of- 
fered to  the  former  such  a  recognition  as  a  concession 
or  compromise,  the  offer  would  have  been  spurned. 
The  latter  party  prevailed,  and  as  a  natural  result  of 
the  contest,  neither  a  religious  test  nor  a  recognition  of 
the  existence  of  God  was  to  be  found  in  the  Constitution. 
Neither  the  prohibition  of  a  religious  test  nor  the  omission 
of  the  name  of  God  can  be  justly  taken  as  evidence  of 
an  intention  to  make  a  Constitution  which  should  be 
atheistic  or  anti-Christian  in  its  character  and  effect. 
*  Ibid.,  vol.  iv.,  pp.  191-194. 


2  20  Religious  Amendment. 

II.  A  Constitution  is  that  part  of  legislation  which  is 
enacted  directly  by  the  people  for  the  purpose  of  giving 
instructions  to  the  legislature  and  prescribing  limits  to 
its  action  ;  courts  being  established  to  declare  when  the 
legislature  has  failed  to  compl}^  with  the  instructions 
given  or  to  confine  itself  to  the  limits  prescribed.  The 
Constitution  is  framed  for  this  practical  purpose,  and 
not  for  the  proclamation  of  the  sentiments  of  the  people 
upon  subjects  which  maybe  deemed  to  be  of  importance. 
Such  proclamation,  if  made  at  all  in  connection  with  a 
Constitution,  is  made  in  a  preface,  styled  a  Bill  of  Rights. 
That  the  members  of  the  convention  which  framed  the 
Constitution  of  the  United  States  intended  to  confine 
themselves  strictly  to  the  practical  purpose  of  such  an 
instrument,  appears  in  the  fact  that  they  framed  no 
Bill  of  Rights,  and  gave  to  the  Constitution  throughout 
a  restrictive  rather  than  a  declarative  character.  They 
did  not  see  fit  to  afiirm  in  the  Constitution  even  those 
few  and  fundamental  principles  which  were  set  forth  in 
the  Declaration  of  Independence,  that  all  men  are  cre- 
ated free  and  equal,  that  they  are  endowed  by  their 
Creator  with  certain  inalienable  rights,  that  among  these 
are  life,  liberty,  and  the  pursuit  of  happiness,  that  to 
secure  these  rights  governments  are  instituted  among 
men  deriving  their  just  powers  from  the  consent  of  the 
governed.  In  the  State  conventions  fault  was  found 
with  the  Constitution  because  it  did  not  contain  any 
such  declarations.  The  convention  of  North  Carolina 
adopted  a  long  Declaration  of  Rights,  including  the 
principles  set  forth  in  the  Declaration  of  Independence  ; 
and  resolved  that  it  be  submitted  and  acted  upon  by  a 
National  convention,  to  be  called  for  the  purpose  before 
the  ratification  of  the  Constitution  on  the  part  of  the 
State  of  North  Carolina.' 

'  Elliot's  Debates,  vol.  iv.,  242-244. 


Religious  A  mendment.  2  2 1 

Judge  Story,  in  his  Commentary  on  the  Constitution, 
speaking  of  the  Amendments,  says  that  they  ' '  princi- 
pall}'  regard  subjects  properly  belonging  to  a  Bill  of 
Rights  "  (p.  698).  And  of  the  amendment  denying  to 
Congress  the  power  to  make  a  law  respecting  an  estab- 
lishment of  religion  or  prohibiting  the  free  exercise 
thereof,  he  says  :  "  The  real  object  of  the  amendment 
was  not  to  countenance,  much  less  to  advance  Mahom- 
etanism,  or  Judaism,  or  infidelity,  by  prostrating  Chris- 
tianity ;  but  to  exclude  all  rivalry  among  Christian 
sects,  and  to  prevent  any  National  ecclesiastical  estab- 
lishment which  should  give  to  a  hierarchy  the  exclu- 
sive patronage  of  the  National  government.  It  thus 
sought  to  cut  off  the  means  of  religious  persecution 
(the  vice  and  pest  of  former  ages)  and  the  power  of  sub- 
verting the  rights  of  conscience,  in  matters  of  religion, 
which  have  been  trampled  upon  almost  from  the  days 
of  the  apostles  to  the  present  age  "  (p.  701). 

III.  The  omission  in  the  Constitution  is  to  be  attrib- 
uted, in  some  measure,  to  a  like  omission  in  the  Arti- 
cles of  Confederation,  as  one  of  its  producing  causes. 

The  delegates  of  the  States,  in  promulgating  the 
Articles  of  Confederation,  do  for  themselves  make  the 
following  acknowledgment,  viz. : 

"  And  wliereas,  it  has  pleased  the  Great  Governor 
of  the  world  to  incline  the  hearts  of  the  legislatures 
we  respectively  represent  in  Congress,  to  approve  of 
and  to  authorize  us  to  ratify  the  said  Articles  of  Con- 
federation and  perpetual  union :  Know  ye  .  .  . " 
Yet  in  the  articles  themselves  there  is  no  mention  of 
the  name  of  God  or  declaration  of  a  belief  in  the  Chris- 
tian religion.  The  members  of  the  Constitutional 
convention  regarded  themselves  as  bound  by  their  in- 
structions to  adhere  as  closely  as  possible  to  the  Arti- 
cles of  Confederation.     At  the  very  outset,  Mr.  Ran- 


22  2  Religions  Ame?zdment. 

dolph  offered  a  series  of  resolutions,  of  which  the  first 
was, 

* '  Resolved,  That  the  Articles  of  Confederation  ought 
to  be  so  corrected  and  amended  as  to  accomplish  the 
object  of  their  institution,  namely,  '  common  defence, 
security  of  liberty,  and  general  welfare.'  "  ' 

It  would  be  puerile,  however,  to  allege  the  mere 
copying  of  the  Articles  of  Confederation  as  a  sufficient 
explanation  of  the  omission  in  the  Constitution.  The 
features  of  both  the  Articles  of  Confederation  and  the 
Constitution  which  have  been  noticed  as  remarkable — 
their  restrictive  character,  and  the  omission  of  all 
declarative  statements — are  to  be  traced  to  a  common 
cause. 

The  delegates  of  the  States,  in  framing  the  Articles 
of  Confederation,  never  supposed  for  a  moment  that 
they  were  doing  anything  so  solemn  and  important  as 
the  framing  of  a  new  system  of  government.  They  had 
not  been  commissioned  to  do  any  such  thing.  The  peo- 
ple were  familiar  with  the  thirteen  State  governments 
and  regarded  them  with  that  reverence  and  affection 
which  men  bestow  upon  old  institutions  with  which  are 
associated  all  the  interests  and  experiences  of  their  lives ; 
and  they  were  jealous  lest  the  general  welfare  should  be 
made  a  pretext  for  encroachment  upon  the  prerogatives 
of  those  governments.  They  would  not  allow  the  Con- 
tinental Congress  to  assume  the  powers  of  a  govern- 
ment. It  could  recommend  but  had  no  power  to  execute. 
The  Congress  under  the  Articles  of  Confederation  could 
not  do  much  more,  and  it  was  this  rigid  reservation  of 
all  the  powers  of  government  to  the  States  that  caused 
the  failure  of  the  Confederation.  The  Articles  of  Con- 
federation were  intended  to  be  nothing  but  a  league  or 
i/*/V/.,p.  6i. 


Religious  Amendment. 


compact  between  the  States  for  certain  specified  pur- 
poses,— not  a  new  government  superadded  to  that  of 
the  States,  and  the  object  of  the  Constitutional  conven- 
tion was  nothing  more  than  correcting  and  enlarging 
those  articles,  so  that  they  might  the  better  serve  the 
purpose  for  which  the}-  were  intended.  The  convention 
spent  a  long  time  in  a  fruitless  effort  to  accomplish  this 
purpose,  till  at  last  the  members  felt  constrained  to  tran- 
scend the  limits  of  their  instructions  and  frame  a  Con- 
stitution, the  adoption  of  which  would  be  a  new  gov- 
ernment. So  great,  however,  was  the  jealousy  of  the 
people  for  the  prerogatives  of  their  State  governments, 
that  large  numbers  of  them,  after  the  adoption  of  the 
Constitution,  contended  that  it  was  only  a  compact  be- 
tween sovereign  States,  and  not  a  government  to  which 
the  States  were  to  be  subject  against  their  interest  or 
will.  Various  incidents  in  our  histor)-,  such  as  the 
alien  and  sedition  laws  of  1798,  the  tariffs  of  1824  and 
1828,  and  the  extension  of  the  system  of  African  slaver}^ 
to  the  new  Territories,  have  serv^  ed  to  keep  the  question 
open. 

The  legislature  of  Kentuck}',  in  1798,  passed  certain 
resolutions,  of  which  the  first  was  : 

"  Resolved,  That  the  several  States  composing  the 
United  States  of  America  are  not  united  on  the  princi- 
ple of  unlimited  submission  to  their  general  government, 
but  that  by  compact  under  the  style  and  title  of  a  Con- 
stitution for  the  United  States,  and  of  amendments 
thereto,  they  constituted  a  general  government  for 
special  purposes,  delegated  to  that  government  certain 
definite  powers,  reserving  each  State  to  itself  the  resid- 
uary mass  of  right  to  their  owm  self-government  ;  and 
that  whensoever  the  general  government  assumes  un- 
delegated powers,  its  acts  are  unauthoritative,  void,  and 


2  24  Religious  A-niendnient. 

of  no  force  ;  that  to  this  compact  each  State  acceded  as 
a  State,  and  is  an  integral  party  ;  that  this  government 
created  by  this  compact  was  not  the  exchisive  or  final 
judge  of  the  extent  of  the  powers  delegated  to  itself,' 
since  that  would  have  made  its  discretion,  and  not  the 
Constitution,  the  measure  of  its  powers,  but  that,  as  in 
all  other  cases  of  compact  among  parties,  having  no 
common  judge,  each  party  has  an  equal  right  to  judge 
for  itself,  as  well  as  of  infractions,  as  of  the  mode  and 
manner  of  redress." 

These  resolutions  were  sent  to  the  several  States,  and 
all  the  replies  received  being  unfavorable,  excepting 
that  of  Virginia  which  had  passed  a  resolution  the 
same  year  declaring  the  same  principles,  the  legisla- 
ture of  Kentucky  in  1799  re-afl5rmed  the  resolution  of 
the  previous  year,  adding  the  declaration,  "that  the 
several  States  who  formed  that  instrument  being  sov- 
ereign and  independent  have  the  unquestionable  right 
to  judge  of  its  infractions,  and  that  a  nullification  by 
those  sovereignties  of  all  unauthorized  acts  done  under 
color  of  that  instrument  is  the  rightful  remedy." 

These  resolutions  of  Kentucky  and  Virginia  were  in- 
tended to  be  only  solemn  protests,  nothing  more  being 
contemplated  than  a  conference  of  the  States,  or  other 
movement,  to  secure  a  repeal  of  the  obnoxious  laws. 

The  labor  of  slaves  being  too  rude  and  wasteful  to 
be  profitably  applied  to  manufacturing,  the  Southern 
States  became  agricultural,  while  the  Northern  States 
became  more  distinctively  manufacturing.  In  addition 
to  this  the  invention  of  the  cotton  gin  and  the  repeal 
of  the  Knglish  tariff  on  cotton,  the  long  staple  cotton 
of  America  being  necessary  to  enable  the  English  to 
compete  with  American  manufacturers,  caused  the  in- 
terest of  the  Southern  States  to  be  more  exclusively 


Religiotis  Amendment.  225 

agricultural,  and  the  people  of  those  States  to  become 
verj'  strongl)-  opposed  to  a  tariflf  for  the  protection  of 
manufacturers.  The  duty  on  imports  was  increased  in 
1824,  and  in  1825  the  legislature  of  South  Carolina 
declared,  "  that  it  is  an  unconstitutional  exercise  of 
power  on  the  part  of  Congress  to  lay  duties  to  protect 
domestic  manufactures."  The  higher  tariff  of  1828 
was  regarded  as  an  aggravation  of  the  wrong,  and  a 
convention  which  was  called  by  the  legislature  October 
26,  1832,  and  which  met  on  the  24th  of  the  follow- 
ing November,  adopted  an  ordinance  asserting  the  prin- 
ciples set  forth  in  the  Kentucky  and  Virginia  resolutions 
of  1798,  but  going  on  still  further  to  "nullify  certain 
acts  of  the  Congress  of  the  United  States,  purporting 
to  be  laws,  laying  duties  and  imposts  on  the  importa- 
tion of  foreign  commodities  ' '  ;  the  ordinance  declared 
it  unlawful  to  attempt  to  enforce  the  collection  of  such 
duties  b}-  an  officer  of  the  State  or  of  the  United  States  ; 
enjoined  upon  the  legislature  the  passage  of  acts  to  en- 
force this  ordinance ;  and  finally  declared  that  if  any 
attempt  should  be  made  b}-  the  Federal  government  to 
coerce  the  State,  they  would  hold  themselves  absolved 
from  all  further  obligations  to  maintain  or  presence 
their  political  connection  with  the  people  of  the  other 
States,  but  would  organize  a  separate  government. 
President  Jackson  was  firmh-  determined  to  enforce 
the  collection  of  the  duty  on  imports,  and  a  conflict  of 
arms  was  averted  only  by  a  compromise.  Congress  en- 
acting that  there  should  be  a  progressive  reduction  of 
duties  until  1842. 

The  question  whether  the  Constitution  was  a  com- 
pact betu-een  States  or  whether  it  established  a  govern- 
ment, was  so  far  an  open  one  that  Mr.  Calhoun,  senator 
from  South  Carolina,  offered  on  the  22d  of  Januarj*, 


2  26  Religious  Amendment. 

1833,  a  series  of  resolutions  in  the  Senate  embodying 
the  former  doctrine.  Mr.  Webster  of  Massachusetts, 
in  his  famous  speech  of  February  16,  1833,  on  those 
resohitions,  gave  the  question  its  final  settlement  as  one 
of  logic  and  interpretation,  proving  that  the  Constitu- 
tion was  not  a  mere  league  or  compact  between  sov- 
ereign States,  but  that  it  established  a  government  ; 
that  this  government  derived  its  authority  from  the 
people,  the  same  source  from  which  the  State  govern- 
ments derived  their  authority  ;  that  it  was  as  sovereign 
within  its  prescribed  sphere  as  the  governments  of  the 
States  were  within  their  spheres,  and  that  its  authority 
was  ordained  by  the  people  to  be  paramount,  they  hav- 
ing declared  in  Article  VI.  that  "This  Constitution 
and  the  laws  of  the  United  States  made  in  pursuance 
thereof  .  .  .  shall  be  the  supreme  law  of  the  land, 
and  the  judges  in  every  State  shall  be  bound  thereby, 
anything  in  the  Constitution  and  laws  of  any  State  to 
the  contrary  notwithstanding. ' '  ' 

The  question  was  settled,  however,  only  as  a  question 
of  logic,  for  when  the  interests  of  people  are  involved 
their  opinions  and  actions  are  not  determined  by  logic. 

Opposition  to  slavery  as  a  system  began  to  rise  in 
the  North,  which  as  it  grew  begot  a  determination  to 
prohibit  the  extension  of  the  system  into  new  territory, 
while  the  profits  of  cotton  raising  created  in  the  South 
a  determination  to  perpetuate  and  extend  the  system. 
The  controversy  was  growing  in  earnestness  year  by 
year,  till  at  last  the  election  of  Abraham  Lincoln  to  the 
Presidency  and  Hannibal  Hamlin  to  the  Vice-Presi- 
dency in  i860,  both  Northern  men,  was  taken  by  the 
South  as  a  final  and  irreversible  subjection  of  their 
special  interests  to  the  dictation  of  the  North. 
'  Works,  vol.  iii.,  pp.  448—505. 


Religious  Amendment.  227 

The  legislature  of  South  Carolina  on  November  7, 
i860,  called  a  State  convention,  which  met  at  Charles- 
ton, December  17th,  and  passed  "  an  ordinance  to  dis- 
solve the  union  between  the  State  of  South  Carolina 
and  other  States  united  with  her  under  the  compact 
entitled  the  Constitution  of  the  United  States  of 
America,"  declaring  that  "the  ordinance  adopted  by 
us  in  convention  on  the  23d  day  of  May  in  the  year 
of  our  lyord  1788,  whereby  the  Constitution  of  the 
United  States  was  ratified,  and  also  all  acts  and  parts 
of  acts  of  the  general  assembly  of  the  State  ratifying 
amendments  of  the  said  Constitution,  are  hereby  re- 
pealed, and  that  the  union  now  existing  between  South 
Carolina  and  other  States  under  the  name  of  the  United 
States  of  America  is  hereby  dissolved."  Ten  other 
Southern  States  took  similar  action.  The  forces  of 
South  Carolina  seized  the  United  States  Custom-house, 
post-ofiice,  and  arsenal  in  Charleston  and  took  posses- 
sion of  Forts  Moultrie  and  Pickney  in  Charleston  harbor. 
On  the  12th  of  April,  1861,  they  fired  upon  Fort  Sumter, 
and  the  great  Civil  War  began,  which  continued  until 
April  9,  1865,  when  General  lyCe,  commander  of  the 
Confederate  army,  surrendered  to  General  Grant,  and 
war,  the  last  arbiter  in  the  affairs  of  nations,  decided 
that  the  Constitution  of  the  United  States  established 
a  government,  and  not  a  mere  league  of  States. 

It  is  not  to  be  wondered  at  that  the  Constitutional 
convention,  knowing  that  it  had  gone  beyond  the  in- 
structions given  it,  and  aware  of  the  deep-rooted  and 
strong  prejudice  in  favor  of  the  State  governments, 
should  deem  it  expedient  to  omit  those  formal  declara- 
tions which  in  other  circumstances  would  have  been 
included  in  an  instrument  intended  to  found  a  new 
government.      The  impression  was  prevalent  at  the 


2  28  Religious  Amendment. 

time  that  the  Declaration  of  Independence  had  brought 
a  new  Nation  into  existence,  and  that  the  Articles  of 
Confederation  and  the  Constitution  were  simply  adjust- 
ments of  the  internal  affairs  of  the  nation.  The  Dec- 
laration of  Independence  began  the  work,  but  came 
very  far  short  of  completing  it.  Had  there  been  noth- 
ing more  it  would  have  brought  into  being  thirteen 
Nations  instead  of  one.  But  under  the  prevailing 
impression  that  the  work  had  been  fully  done  by  the 
Declaration  of  Independence,  it  was  perfectly  natural 
that  there  should  be  a  recognition  of  the  Divine  Being 
in  the  one  instrument,  and  not  in  the  other.  The  omis- 
sion was  not  made  in  the  latter  with  impious  intent, 
nor  by  an  oversight  which  would  imply  any  lack  of 
piety  in  the  members  of  the  convention.  The  Nation 
had  not  been  converted  from  Christianity  to  atheism  in 
the  brief  period  between  1776  and  1787. 

We  have  a  case  perfectly  analogous  in  the  Consti- 
tution of  the  German  Empire,  dated  April  14,  1871, 
which,  if  the  words  "of  God's  grace,"  be  excepted, 
says  nothing  about  religion  and  requires  no  religious 
tests  as  qualification  for  civil  and  political  offices  under 
the  National  government.  No  one  ever  thinks  of  de- 
nouncing it  as  an  atheistic  document  or  charging  its 
framers  with  impiety.  It  was  simply  a  new  adjustment 
of  the  internal  affairs  of  a  nation  already  existing ;  it 
provided  for  no  official  connection  with  the  Church, 
but  left  the  subject  of  religion  to  the  several  States,  each 
of  which  has  its  own  State  church.' 

The  Christian  people  of  this  countr}^  knowing  all  the 

circumstances  and  sharing  in  the  general  impression 

referred  to,  accepted  the  Constitution  as  it  was,  content 

with  the  indisputable  fact  that  the  civil  government  of 

'  Church  and  State,  Schaflf,  pp.  91,  92. 


Religious  Amendment.  229 

a  Christian  people  is  necessarily  Christian.  They  were 
perhaps  the  more  reconciled  to  the  acceptance  of  it  by 
the  fact  that  nearly  all  the  State  Constitutions  contained 
the  recognition  desired,  the  State  governments  being 
then  regarded  as  of  paramount  importance. 

Of  late  years,  however,  the  omission  has  been  seized 
upon  as  a  means  of  enforcing  a  particular  theory  of 
civil  government ;  the  theory  that  civil  government  in 
its  proper  form  must  be  destitute  of  all  religious  char- 
acter. This  theory  has  been  held  principally  and  has 
been  urged  most  strenuously  by  those  who  deny  the 
truth  of  Christianity  and  of  all  religion.  During  a  com- 
paratively brief  period,  after  the  middle  of  the  present 
century,  atheism  gained  in  respectability  by  the  philo- 
sophical speculations  of  certain  men  who  had  attained 
to  great  eminence  in  natural  science.  These  men,  hav- 
ing passed  over  into  the  domain  of  philosophy,  gave 
forth  their  pronouncements  with  the  authority  of  dis- 
coverers and  first  occupants.  They  soon  found,  how- 
ever, that  the  new  territory  had  been  long  occupied, 
much  longer  than  that  from  which  they  came,  and  that 
there  were  giants  in  that  land.  Their  authority  was, 
therefore,  of  brief  duration,  but  while  it  was  at  its 
height  the  unbeliever  was  emboldened  to  demand  that 
the  administration  of  the  whole  government  be  con- 
formed to  his  dogmas  on  the  subject  of  religion.  A 
national  organization,  called  the  Liberal  League,  was 
formed  for  the  purpose  of  accomplishing  this  end.  It 
was  demanded  that  the  employment  of  chaplains  by  the 
government  should  cease  ;  that  the  administration  of 
oaths  should  be  abandoned  ;  that  the  crime  of  blas- 
phemy should  be  blotted  from  the  statute  book  ;  that 
the  Sabbath  laws  should  be  repealed  ;  that  the  holding 
of  religious  exercises  and  the  reading  of  the  Bible  in  the 


230  Religious  Amendment. 

public  schools  should  be  prohibited.  The  demand  was 
so  far  yielded  to,  that  in  some  States  provision  for  the 
salaries  of  chaplains  was  either  neglected  or  prohibited  ; 
the  law  relating  to  blasphemy  was  repealed  ;  the  Sab- 
bath laws  were  either  repealed  or  greatly  modified,  and 
with  the  co-operation  of  a  certain  religious  denomina- 
tion, the  reading  of  the  Bible  in  the  public  schools  was 
prohibited.  It  is  not  strange  that  a  goodly  number  of 
Christian  people  began  to  feel  the  need  of  some  organ- 
ized effort  to  secure  their  rights  and  to  defeat  the  at- 
tempt to  substitute  an  atheistic  for  the  Christian  basis 
of  their  government. 

The  Civil  War,  happening  to  be  nearly  coincident  with 
the  new  movement,  was  looked  upon  by  a  number  of 
Christian  citizens  as  a  judgment  of  God  upon  the  na- 
tion for  its  failure  to  honor  him  in  its  fundamental  law. 
It  was  during  the  darkest  days  of  the  Civil  War  that  the 
organized  effort  to  secure  a  religious  amendment  to  the 
Constitution  of  the  United  States  took  its  rise. 

On  Feb.  3,  1863,  a  convention  met  at  Xenia,  Ohio, 
which  had  been  called  for  prayer  and  Christian  confer- 
ence, with  special  reference  to  the  state  of  the  country. 
On  the  second  day  of  the  convention  John  Alexander, 
then  of  Xenia,  presented  a  paper  in  which  the  sins  of 
the  nation  were  confessed  and  the  importance  of  re- 
pentance and  reformation  insisted  upon.  After  speak- 
ing of  President  I^incoln's  Emancipation  Proclamation, 
then  recently  issued,  and  the  hopeful  prospect  of  an 
anti-slavery  amendment  to  the  Constitution,  the  paper 
proceeds  as  follows : 

' '  We  regard  the  neglect  of  God  and  his  law,  by 
omitting  all  acknowledgment  of  them  in  our  Consti- 
tution, as  the  crowning  original  sin  of  the  nation,  and 
slavery  as  one  of  its  natural  outgrowths.     Therefore, 


Religions  Amendment.  231 

the  most  important  step  remains  yet  to  be  taken,  to 
amend  the  Constitution  so  as  to  acknowledge  God  and 
the  authority  of  His  law  ;  and  the  object  of  this  paper 
is  to  suggest  to  this  convention  the  proprietj^  of  con- 
sidering the  subject  and  of  preparing  such  an  amend- 
ment to  the  Constitution  as  they  may  think  proper  to 
propose,  in  accordance  with  its  provisions." 

Mr.  Alexander  gave  an  outline  of  the  amendments 
to  the  pre  imble  to  the  Constitution  which  seemed  to 
him  to  bt  needed,  and  the  whole  paper  was  approved 
by  the  convention. 

On  February  6th,  just  three  days  after  the  meeting 
at  Xenia,  and  without  any  knowledge  of  that  meeting, 
a  convention  of  Christians  of  various  denominations 
met  in  Sparta,  Illinois,  and  adopted  resolutions  pledg- 
ing the  members  of  the  convention  to  "  labor  to  bring 
the  nation  to  repentance  toward  God  and  to  a  faithful 
administration  of  the  government  according  to  the 
principles  of  the  word  of  God." 

After  several  adjourned  meetings  of  these  conventions 
it  was  thought  best  to  call  a  national  convention  of  all 
citizens  favorable  to  the  measure,  without  any  distinc- 
tion of  party  or  creed.  This  convention  met  in  Alle- 
gheny City,  January  27,  1864,  and  formed  a  permanent 
organization  under  the  title,  The  National  Association 
for  the  Amendment  of  the  Constitution,  which  has  since 
been  changed  to  the  National  Reform  Association. 

The  amendment  proposed  is  to  the  preamble,  and  in 
the  body  of  the  Constitution  only  such  changes  as  may 
be  necessary  to  give  effect  to  that  amendment.  The 
preamble  as  amended  would  be  as  follows,  the  amend- 
ments being  in  brackets : 

"  We, -the  people  of  the  United  States,  [humbly  ac- 
knowledging Almighty  God  as  the  source  of  all  author- 


-J- 


Religious  Amendment. 


ity  and  power  in  civil  government,  the  I/ord  Jesus 
Christ  as  the  Ruler  among  the  nations,  his  revealed 
will  as  the  supreme  law  of  the  land,  in  order  to  consti- 
tute a  Christian  government,]  and  in  order  to  form  a 
more  perfect  union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defence,  promote 
the  general  welfare,  and  secure  [the  inalienable  rights 
and]  blessings  [of  life],  liberty  [and  the  pursuit  of  hap- 
piness] to  ourselves,  our  posterity,  [and  all  the  in- 
habitants of  the  land],  do  ordain  and  establish  this 
Constitution  for  the  United  States  of  America.' 

Men  of  high  position  in  all  the  walks  of  life  have 

'  The  amendment  proposed  has  undergone  several  modifica- 
tions, but  its  final  form  may  be  regarded  as  embodied  in  a  joint 
resolution  which  was  presented  to  both  houses  of  Congress 
January  26,  1894,  and  by  them  referred  to  the  appropriate 
committees  : 

"  Resolved  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  tzvo  thirds 
of  each  House  concurring  therein,  That  the  following  amended 
form  of  the  Preamble  of  the  Constitution  of  the  United  States 
be  proposed  for  ratification  by  conventions  in  the  several 
States,  which  when  ratified  by  conventions  in  three  fourths  of 
the  States  shall  be  valid  as  a  part  of  said  Constitution,  namely  : 

preambi<e;. 

"  We,  the  people  of  the  United  States  [devoutly  acknowledg- 
ing the  supreme  authority  and  just  government  of  Almighty 
God  in  all  the  affairs  of  men  and  nations  ;  grateful  to  Him  for 
our  civil  and  religious  liberty  ;  and  encouraged  by  the  assurances 
of  His  Word  to  invoke  His  guidance,  as  a  Christian  nation, 
according  to  His  appointed  way,  through  Jesus  Christ,],  in  order 
to  form  a  more  perfect  union,  establish  justice,  ensure  domestic 
tranquillity,  provide  for  the  common  defence,  promote  the  gen- 
eral welfare,  and  secure  the  blessings  of  liberty  to  ourselves 
and  our  posterity,  do  ordain  and  establish  this  Constitution  for 
the  United  States  of  America." 


Religious  Amendment. 


joined  in  the  movement,  but  it  has  never  been  regarded 
with  favor  by  a  large  majority  of  the  Christian  people 
of  the  land,  and  of  late  years  has  been  losing  rather 
than  gaining  in  strength.  It  would  be  uncharitable  to 
attribute  the  failure  of  Christian  people  to  enter  into 
the  movement  to  lack  of  the  true  Christian  spirit,  and 
it  would  be  unreasonable  to  attribute  it  to  mere  immo- 
bility. They  have  reasons  for  their  refusal  of  co-oper- 
ation, some  of  which  are  obvious  : 

1.  The  prevailing  conviction  that  our  civil  govern- 
ment is,  now  without  any  such  amendment,  Christian, 
necessarily  so  while  the  people  are  Christian,  and  that 
for  all  practical  purposes  the  amendment  would  not 
make  it  any  more  so  than  it  is. 

2.  The  universal  opposition  to  the  imposition  of  a 
religious  test  as  a  qualification  for  office  or  public  trust, 
and  the  fear  that  the  amendment  might  be  made  to 
operate  as  such  a  test.  The  advocates  of  the  amend- 
ment disavow  anj-  intention  of  establishing  a  religious 
test ;  what  they  desire,  they  say,  is  simply  something 
declaratory,  nothing  that  would  coerce  the  conscience  of 
any  man,  nothing  that  would  debar  any  one  from  any 
right  or  privilege  on  account  of  his  religious  belief.  The 
amendment,  they  say,  is  intended  only  to  preserve  the 
nation  from  the  sin  of  dishonoring  God  in  its  funda- 
mental law,  and  to  exert  a  wholesome  educational  influ- 
ence upon  the  people  ;  yet  they  argue  in  its  favor  that 
it  will  furnish  a  basis  for  coercive  legislation  on  Chris- 
tian subjects,  which  does  not  now  exist ;  it  will  furnish 
a  legal  basis  for  the  enactment  of  Sabbath  laws,  for  the 
requirement  that  legislation  on  all  moral  subjects  shall 
conform  to  the  law  of  God,  and  for  resistance  to  the 
prohibition  of  the  Bible  in  the  common  schools.  So 
far  as  these  objects  are  proper,  we  have  already  ade- 


2  34  Religious  Amendment. 

quate  basis  for  legislation  in  the  fact  that  the  civil 
institutions  of  a  Christian  people  are  necessarily  Chris- 
tian. Besides  it  is  doubtful  whether  a  mere  declaration 
in  the  preamble  of  the  Constitution  would  serve  as  a 
basis  for  the  legislation  desired.  Judge  Story  in  dis- 
cussing the  preamble  in  his  Commentary  on  the  Consti- 
tutio7i  says  :  ' '  The  preamble  never  can  be  resorted  to, 
to  enlarge  the  powers  confided  to  the  general  govern- 
ment or  any  of  its  departments.  It  cannot  confer  any 
"^o^^^r per  se.  It  can  never  amount,  by  implication,  to 
an  enlargment  of  any  power  expressly  given.  It  can 
never  be  the  source  of  any  implied  power  when  other- 
wise withdrawn  from  the  Constitution"  (p.  164). 

The  preamble,  if  it  could  furnish  any  basis  for  the 
legislation  desired,  has  already  furnished  a  sufficient 
basis  in  the  declaration  that  the  object  of  the  Constitu- 
tion is  to  "establish  justice."  More  than  justice  no 
Christian  should  desire,  and  ample  provision  for  secur- 
ing that  end  has  been  made  in  the  establishment  of 
courts. 

The  decisions  of  the  courts  may  vary,  but  as  the 
needle  of  the  compass  after  oscillating  from  one  side  to 
the  other  is  brought  to  rest  at  last  on  the  magnetic 
meridian  by  the  power  of  the  ever-present  and  unseen 
world  currents,  so  will  the  action  of  the  courts  be 
brought  by  a  like  power  to  rest  upon  the  line  of  exact 
justice.  It  is  not  necessary  in  order  to  establish  jus- 
tice that  every  right  should  be  secured  by  a  special 
written  law.  It  has  not  been  necessary  in  order  to  se- 
cure the  rights  of  the  people  that  the  common  law 
should  all  be  converted  into  statute  law.  Submission 
by  general  consent  to  those  principles  of  right  wdiich 
are  embodied  in  the  system  of  rules,  entitled  interna- 
tional law,  and  submission  by   special   agreement   to 


Religious  Amendment.  235 

the  decisions  of  international  arbitration  have  secured 
justice  betu-een  nations  without  any  international  con- 
stitution or  a  word  of  enacted  law.  We  are  told  that 
the  ' '  law  was  added  because  of  transgressions,  till  the 
seed  should  come  to  whom  the  promise  was  made  ' '  ; 
and  we  are  sure  that  when  the  promise  of  God  that 
"  They  shall  not  hurt  nor  destroj-  in  all  my  holy  moun- 
tain "  shall  be  fulfilled,  it  will  not  be  by  the  restraints 
of  written  Constitutions  and  laws,  but  by  the  power  of 
the  law  of  righteousness  and  love  written  in  the  hearts 
of  men,  for  "  The  earth  shall  be  full  of  the  knowledge 
of  the  Lord,  as  the  waters  cover  the  sea."  ' 

'  So  long  as  man  dwells  in  the  body,  his  manifold  inward  life 
will  need  to  be  embodied  in  outward  form  ;  but  both  principles 
and  facts  warrant  the  belief  that  undue  attention  to  the  outward 
form  will  be  followed  by  a  decline  in  the  vigor  of  the  inward 
life.  The  ancient  Phariseeism  has  shown  this  to  be  true  of  the 
spiritual  life,  as  the  modem  prize  ring  and  excess  in  athletics 
have  shown  it  to  be  true  of  the  physical  life. 

In  California  nearly  every  mountain,  valley,  river,  bay  and 
city  is  made,  by  its  name,  a  memorial  of  a  Christian  saint,  and 
if  there  were  any  virtue  in  a  formal  public  recognition  of  Chris- 
tianity the  atmosphere  of  that  State  ought  to  be  as  redolent  of 
sanctity  as  it  is  of  the  eucaljrptus  and  the  orange  blossom  ;  but 
California  is  the  only  State  in  the  Union  which  has  repealed  its 
Sabbath  laws. 

In  no  other  State,  of  equal  age  and  wealth,  does  so  large  a 
proportion  of  the  churches  receive  aid  from  the  Home  INIission- 
ar}-  contributions  of  the  churches  outside  of  its  boundaries.  (59.6 
per  cent,  of  the  Presbj-terian  churches  in  1S94  ;  while  in  Iowa, 
which  is  only  four  years  older,  it  was  43.5  per  cent.,  and  there  is 
no  reason  to  regard  the  Presbyterian  churches  as  exceptional.) 

In  no  other  State  has  the  baser  element  in  politics  succeeded 
in  so  befouling  the  nation  with  an  unjust  prejudice  against  a 
peaceable  and  industrious  class  of  foreigners.  And  in  no  other 
Northern  State  does  so  large  a  proportion  of  the  white  inhabi- 
tants set  so  low  a  value  upon  human  life. 


236  Religious  Amendment. 

If  it  be  said  that  the  proposed  amendment  will  serve 
a  practical  purpose  in  proclaiming  to  the  world  the  true 
character  of  our  government  and  in  exerting  an  educa- 
tional effect  upon  our  own  people,  the  reply  may  be 
made  that  it  is  seriously  defective.  It  will  make  a  false 
proclamation  and  give  an  erroneous  education.  There 
is  no  mention  in  it  of  the  third  person  of  the  Trinity, 
nor  any  recognition  of  his  existence.  It  will  proclaim 
and  teach  a  duo-unity,  not  a  tri-unity,  in  the  God-head. 
If  to  omit  the  name  of  God  in  the  Constitution  is  to 
dishonor  God,  surely  then  to  mention  the  name  of  any 
other  person  of  the  Trinity  and  to  omit  that  of  the 
Hol}^  Spirit,  is  to  dishonor  him.  And  it  is  a  dishonor 
which  cannot  be  regarded  as  a  light  matter  since  our 
I^ord  has  declared  a  penalty  against  it  above  that  for 
dishonoring  any  other  member  of  the  Trinity  :  ' '  There- 
fore I  say  unto  you,  all  manner  of  sin  and  blasphemy 
shall  be  forgiven  unto  men,  but  the  blasphemy  against 
the  Holy  Ghost  shall  not  be  forgiven  unto  men.  And 
whosoever  speaketh  a  word  against  the  Son  of  man  it 
shall  be  forgiven  him,  but  whosoever  speaketh  against 
the  Holy  Ghost  it  shall  not  be  forgiven  him,  neither  in 
this  world,  neither  in  the  world  to  come."  ' 

3.  If  the  amendment  be  simply  declaratory,  it  can- 
not be  expected  to  affect  the  dealings  of  God  with  the 
nation,  unless  the  nation,  as  such,  is  under  obligation 
to  make  the  declaration.  It  is  not  reasonable  to  sup- 
pose that  if  the  nation  be  Christian  in  fact  God  would 
withhold  his  blessings  on  account  of  the  absence  of  any 
verbal  declaration  of  the  fact ;  nor  that  if  the  nation  be 
not  Christian  in  fact  God  would  be  induced  by  the  mere 
verbal  declaration  to  mitigate  the  severity  of  his  judg- 
ments against  it.  On  the  contrary,  it  is  rather  to  be 
'  Matthew,  xii.  31,  32. 


Religio2is  Amendine^tt.  i^j 

supposed  that  in  this  latter  case  he  would  add  to  his 
judgments,  for  the  sin  of  hypocrisy  and  falsehood 
would  call  for  punishment  in  addition  to  that  of  with- 
holding the  honor  which  is  his  due.  It  may  be  re- 
marked in  passing  that  the  force  of  the  argument  in 
favor  of  the  amendment  which  was  drawn  from  the 
Civil  War,  regarded  as  a  punishment  inflicted  upon  the 
nation  for  the  dishonoring  of  God  in  its  organic  law, 
has  been  greatly  weakened  bj-  the  fact  that  blessings 
of  incalculable  value  have  resulted  from  the  war  ; — the 
extinction  of  slaver}-,  and  the  industrial  regeneration 
of  the  Southern  States.  The  war  may  have  been  a  di- 
vine infliction  upon  the  nation  for  its  sins,  but  surel}- 
it  could  not  have  been  for  this  sin  of  omission,  for  the 
blessings  resulting  from  the  war  have  been  accumulat- 
ing, while  the  alleged  sin  has  been  persisted  in. 

The  advocates  of  the  amendment,  in  order  to  hold 
that  the  nation,  as  such,  is  under  obligation  to  make 
the  declaration,  are  constrained  to  adopt  the  mystical 
theory  of  the  State.  The  argument  is  that  the  State  is 
a  moral  person,  and  that  it  is  therefore  under  all  the 
obligations  to  God  that  bind  any  other  moral  person  ; 
one  of  which  is  to  profess  His  name  and  to  acknowl- 
edge His  authority.  ''Resolved,  That  the  State,  as  a 
power  claiming  and  exercising  supreme  jurisdiction 
over  vast  numbers  of  human  beings  as  the  sovereign 
arbiter  of  life  and  death,  and  as  an  educating  power, 
has  necessarily  a  moral  character  and  accountability 
of  its  own."  ' 

"  If  the  State  has  a  character,  then  it  must  also  have 
some  sort  of  personality.     .     .     .     Moral  character  be- 

'  Proceedings  of  the  Natiotial  Convention  to  secure  the  Reli- 
gious Amendnie7it  of  the  Constitution  of  the  United  States,  1872, 
p.  50. 


Religious  Amend^nent. 


longs  only  to  rational  beings.  .  .  .  But  whatever 
that  personality  may  be,  and  I  cannot  discuss  that  ques- 
tion here,  in  it  the  moral  character  of  the  State  inheres. 
.  Whatever  then  may  be  the  opinion  of  an}^  one 
as  to  what  constitutes  the  character  of  the  State,  it  is 
certain  that  it  is  not  the  character  of  any  one  of  its  sub- 
jects ;  neither  is  it  the  sum,  or  sum  and  differences  of 
all  their  characters.  .  .  .  The  State  is  an  official 
person,  ordained  by  God,  and  holds  a  delegated  au- 
thority from  him.  .  .  .  Men  associated  tmder  a 
Constitution  and  laws  in  keeping  with  it  form  a  com- 
posite person  or  an  associated  personality."  ' 

' '  The  State  is  not  only  an  organism,  so  to  speak  ; 
even  Hobbes  arguing  against  its  organic  being,  yet 
represented  it  as  a  colossal  living  man ;  but  it  is  a 
sovereign,  conscious,  moral  personality.  ...  Its 
life  does  not  consist  of  a  body  of  enactments,  but  in  the 
limitation  of  its  being  in  a  moral  personality.  .  .  . 
It  needs,  therefore,  to  regulate  the  relations  of  its  mem- 
bers as  moral  personalities,  and  to  assert  justice,  which 
is  only  the  recognition  of  the  relations  among  the  moral 
personalities  of  its  members,  and  between  them  and  its 
own  moral  personality.  And  in  doing  this  it  derives 
all  its  sanctions  of  administration  from  morality  and 
religion. ' '  ^ 

It  is  very  plain  that  the  advocates  of  the  amendment 
do  not  wish  to  be  understood  as  speaking  of  the  State 
as  a  person  by  a  mere  play  of  the  imagination,  in  the 
use  of  the  common  figure  of  speech,  personification,  as 
when  we  apply  the  feminine  pronoun  to  the  ship,  or 
speak  of  the  breeze  as  whispering,  the  wind  howling,  or 

1  Prof.  O.  N.  Stoddard,  LUD.     Ibid.,  pp.  50,  52,  53. 
'  Hon.  M.  B.  Hagans,  Judge  of  the  Superior  Court  of  Cincin- 
nati.    Ibid.,  p.  10. 


Religions  Amendment.  239 

the  brook  babbling.  But  if  the  State  be,  as  they  hold 
that  it  is,  an  actual  person,  it  must  be  held  to  possess, 
not  one  or  two,  but  all  the  attributes  of  personality. 
If  it  may  have  a  belief  of  its  own,  either  coincident  with 
or  differing  from  that  of  the  persons  who  are  its  sub- 
jects ;  if  it  may  profess  its  belief;  if  it  may  have  a  re- 
sponsibility of  its  own  to  God,  it  must  also  be  capable 
of  hearing  God's  commands  and  threatenings,  of  re- 
penting and  praying  for  the  forgiveness  of  its  sins,  and 
of  rejoicing  in  forgiveness  '\\\  propria  persona^  apart  from 
the  hearing,  repenting,  praying,  and  rejoicing  of  any 
other  person  whatever.  These  acts  performed  by  one 
person  cannot  be  the  acts  of  another  and  a  distinct 
person. 

The  legal  maxim  "  Qui  facit per  alium  facit per  se,^' 
making  the  principal  responsible  for  the  act  of  his  agent, 
has  made  us  familiar  with  the  transfer  of  the  responsi- 
bility for  an  act  from  one  person  to  another ;  and  the 
theological  doctrine  of  imputation  has  made  us  familiar 
with  the  transfer  of  the  consequences  of  an  act  from  one 
person  to  another  ;  but  no  legal  maxim  and  no  theo- 
logical doctrine  teaches  anything  so  absurd  as  the  trans- 
fer of  the  act  itself  from  one  person  to  another.' 

The  advocates  of  the  amendment,  driven  on  by  their 

'  The  theological  doctrine  of  Realism  seems  to  imply  such  a 
transfer,  and  yet  those  who  hold  it  would  probably  deny  the 
implication.  Realism  denies  the  doctrine  of  imputation  as  an 
explanation  of  the  state  of  sin  and  misery  into  which  mankind 
are  fallen  ;  that  is,  the  transfer  of  the  consequences  of  Adam's 
sin  to  his  posterity,  upon  the  ground  of  a  covenant  or  repre- 
sentative relationship  ;  and  explains  the  present  state  of  man- 
kind by  the  hypothesis  that  all  mankind  were  in  Adam,  and 
that  they  acted  when  he  acted.  They  may  have  been  con- 
strained to  act  by  him  in  whom  they  were  contained,  but  their 
present  condition  is  the  consequence  of  their  own  act. 


240  Religious  Amendment. 

zeal,  do  not  stop  to  define  personality  or  to  follow  the 
definition  to  its  necessary  consequences.  A  person  in 
the  proper  sense  of  the  term  is  a  suppositiini  intcUigeiis, 
a  distinct  individual  existence,  having  a  power  of  know- 
ing, feeling,  and  willing  of  its  own,  and  a  consciousness 
of  its  own  ;  that  is,  the  power  of  knowing  that  it  knows, 
feels,  and  wills.  In  speaking  of  itself  it  must  use  the 
personal  pronoun  of  the  first  person.  If  this  nation, 
therefore,  be  a  person  and  in  the  Constitution  speaks  as 
a  person,  it  should  have  said  "  I,  the  Nation,  do  ordain 
and  establish  this  Constitution  "  ;  or,  if  common  sense 
revolt  at  such  a  consistent  carrying  out  of  the  theory, 
then  at  least,  ''Wo.  {pluralis  majestatis),  the  Nation, 
and  not  We,  the  People." 

A  personality  may  be  constituted  of  a  part  of  one  vast 
substance,  and  yet  that  substance  be  in  no  respect  a  per- 
son. The  iceberg  is  of  the  same  substance  as  the  ocean, 
but  it  does  not  follow  that  the  ocean  possesses  all  the 
specific  properties  of  the  iceberg.  The  latter  is  an  in- 
dividual concrete  thing,  entirely  different  from  the  water 
of  the  ocean  in  gravity,  solidity,  and  in  the  property 
of  refracting  and  reflecting  light. 

Three  persons  in  the  Godhead  are  represented  in  the 
Scriptures  as  having  all  the  attributes  of  personality, 
not  of  a  figurative  or  modal,  but  an  actual  personalit}- ; 
but  the  one  substance  or  essence  of  which  these  three 
divine  persons  are  composed  is  not  a  person.  Panthe- 
ists do  not  hold  that  "the  All  "  is  a  person,  but  that 
it  comes  into  the  self-consciousness  of  personality  only 
in  man.  If,  therefore,  the  State  were  a  substance  or 
thing  distinct  from  the  personality  of  its  subjects,  it 
does  not  necessarily  follow  that  it  is  a  person. 

The  hypothesis  of  the  personality  of  the  State  leads 


Religious  Amendment.  241 

to  absurd  consequences  if  fully  and  consistently  carried 
out,  and  it  is  unnecessary.  God  is  competent  in  knowl- 
edge and  power  to  deal  with  individual  men  in  accom- 
plishing all  his  purposes  on  earth  ;  for  he  is  omniscient 
and  omnipotent,  and  is  a  discerner  of  the  thoughts  and 
intents  of  the  heart.  He  is  represented  in  the  Scriptures 
as  dealing  directly  with  individuals  and  with  masses 
of  men  in  accordance  with  the  character  of  the  individ- 
uals composing  the  masses.  The  calls  to  repentance 
addressed  to  Israel  in  old  times  were  calls  for  changes 
in  the  spirit  and  conduct  of  individual  kings  and  people, 
and  not  for  changes  in  the  utterances  of  a  body  sup- 
posed to  have  a  personality  different  and  apart  from 
that  of  the  individual  Israelite.  It  can  hardly  be  sup- 
posed that  God  would  send  judgments  upon  the  nation 
as  a  person  for  a  constructive  dereliction  when  the  in- 
dividuals composing  the  nation  were  pure  in  their 
intentions  and  faithful  in  their  conduct.  Did  he 
do  so,  the  judgments  sent  upon  the  national  person 
would  fall  upon  the  innocent  individual  persons. 
Neither  can  it  be  supposed  that  if  the  individual 
persons  had  become  corrupt,  he  would  withhold  his 
judgments  from  the  national  person  because  of  the 
piety  expressed  in  its  fundamental  law\  In  that  case 
the  guilty  would  find  immunitj^  under  the  shelter  of  the 
innocent  national  penson. 

It  must  be  admitted  that  the  political  parties  within 
a  State  possess  all  the  attributes  of  personality  that  are 
said  to  belong  to  the  State  itself.  They  are  great  organ- 
ized bodies,  characterized  by  unity  in  the  apprehension 
of  truth,  in  feeling  and  will,  and  also  in  action.  They 
are  spoken  of  as  having  an  individuality  of  their  own, 

distinct  from  that  of  the  persons  of  whom  thev  are  com- 
16 


242  Religious  Amendment. 

posed.  They  are  regarded  with  contempt  and  hatred, 
while  persons  belonging  to  them  are  honored  and  be- 
loved. The  variation  in  the  constituent  elements  may 
be  greater,  in  the  political  party,  than  it  is  in  the  State, 
but  no  one  holds  that  invariability  and  permanence  of 
the  constituent  elements  are  essential  to  the  person- 
ality of  the  State,  and  if  not  essential  in  the  one  case 
they  cannot  be  in  the  other.  Like  the  State,  the  great 
political  parties  are  included  in  the  providential  govern- 
ment of  Him  who  notices  the  fall  of  the  sparrow  and 
numbers  the  hairs  of  our  head.  He  uses  them,  in  the 
determination  of  the  history  and  destiny  of  the  nation, 
as  He  does  the  nations,  in  the  determination  of  the 
history  and  destiny  of  the  world.  He  deals  with  them 
as  individuals,  holding  them  responsible  for  their 
principles  and  acts.  He  visits  them  with  defeat  or 
overthrow  for  their  follies,  errors,  and  iniquities,  just 
as  He  does  the  nations.  But  if  the  political  parties  are 
persons  and  the  State  is  a  person,  then  we  have  two  or 
more  persons  within  a  person,  a  dichotomy  and,  it 
may  be,  a  trichotomy  or  more,  in  that  which  is 
atomic. ' 

The  people  composing  the  State  are  actual  persons, 
amendable  to  the  laws  of  God.  The  State  is  a  meta- 
phorical person,  amenable  only  to  the  laws  of  Rhetoric. 

'  We  do  uot  overlook  the  fact  that  we,  who  are  persons,  are 
in  God,  and  that  God,  in  whom  there  are  three  persons,  is  in  us  ; 
but  we  hardly  think  that  the  tti}'stery  of  the  omnipresence  and 
the  trinity  can  properly  be  made  available  to  relieve  this  case  of 
its  absurdity.  Mystery  is  to  be  believed  only  in  the  extreme  of 
logical  necessity.  It  is  not  to  be  made  a  convenient  resort  for 
the  support  of  every  theory,  that  is  unable  to  stand  without  it. 
A  theory  needing  such  support  may  be,  justly,  set  aside  as  be- 
longing to  the  realm  of  the  clouds. 


Exceptions  to  Limitations.  243 

CHAPTER  VI. 

EXCEPTIONS   TO   LIMITATIONS. 

We  have  seen  that  the  law  of  progress,  differentiation 
in  form  and  specialization  in  function,  applies  to  civil 
govennnent  as  well  as  to  ever^-thing  else  :  and  that  as  a 
general  rule  this  law  will  limit  the  fiuictions  of  govern- 
ment to  purely  secular  affairs.  From  this  rule  certain 
special  cases  are  to  be  excepted. 

When  the  State  takes  to  itself  for  any  length  of  time 
the  charge  of  the  whole  life  of  the  subject,  as  it  does  in 
the  army  and  navy,  in  the  prisons,  reformatories,  homes 
for  soldiers  and  outcast  children,  almshouses,  hospitals, 
asylums,  academies,  colleges  and  universities,  it  is  under 
obligation  of  the  strongest  character  to  teach  religion, 
and  the  religion  which  it  is  under  obligation  to  teach  is 
the  Christian  religion.  If  it  be  granted  that  man  has 
a  religious  element  in  his  nature, — and  a  vast  majority 
of  the  people  in  a  Christian  land  do  grant  it,— then,  not 
to  develop  that  part  of  his  nature  equally  with  the  rest 
is  to  distort  and  dwarf  the  man  ;  it  would  be  the  same 
as  to  develop  his  sense  of  hearing  to  the  highest  degree 
while  keeping  him  in  total  darkness  until  his  eyes  had 
become  atrophied  ;  the  same  as  to  give  all  attention  to 
the  development  of  his  bodj'  and  none  at  all  to  the  de- 
velopment of  his  mind.  Not  to  supply  him  with  the 
consolations  of  religion  in  his  trials  and  troubles  would 
be  the  same  as  not  to  supply  him  with  medicines  in  his 
sickness.  To  eliminate  the  truths  of  religion  from  the 
teaching  given  him  would  be  the  same  as  to  eliminate 
an  essential  element,  such  as  starch,  albumen,  lime  or 
phosphorus  from  the  food  given  him.  Not  to  teach 
him  the  Ten  Commandments,  the  Lord's  Praver  and 


244  Exceptions  to  Lhnitations. 

the  Sermon  on  the  Mount  would  be  the  same  as  not  to 
teach  him  the  multiphcation  table  and  the  rules  of 
syntax.  For  the  State,  while  it  has  charge  of  the  whole 
man,  to  be  indifferent  or  neutral  while  he  is  becoming  a 
Mormon,  a  Buddhist,  or  an  atheist  would  be  the  same 
as  to  be  indifferent  or  neutral  while  he  is  becoming  a 
whiskey  drinker,  an  opium  eater,  or  a  clay  eater.  To 
allow  him  to  depend  for  his  Christian  teaching  and 
nurture  upon  extraneous  and  voluntary  agencies  would 
be  the  same  as  to  allow  him  to  depend  upon  such  agencies 
for  his  food  and  medicine  and  secular  knowledge. 

In  the  case  of  Warner  v.  Smith,  8  Conn.  17.,  an  appren- 
tice had  escaped  from  his  master  and  suit  was  brought 
by  the  master  against  the  guardian  for  the  return  of  the 
apprentice.  It  was  pleaded  in  defence  that  the  master 
had  denied  him  the  ordinary  opportunities  for  religious 
nurture,  and  the  Supreme  Court  of  Connecticut  said : 
"As  the  master  stands  in  loco  pare7iiis,\\e  is  under 
higher  obligation  to  instruct  him  in  the  principles  of 
morality  and  religion ;  but  instead  of  performing  this 
parental  duty  this  master  compelled  this  apprentice,  un- 
necessarily, to  work  on  the  lyord's  day.  From  such  an 
apprenticeship,  it  was  the  right,  it  was  the  duty  of  the 
ward  to  escape,  and  of  the  guardian  to  receive  him." 

Surely  the  State  is  itself  to  be  governed  by  the  princi- 
ples which  it  prescribes  for  the  government  of  the  citi- 
zen. When  it  takes  the  whole  man  in  its  charge,  it  is 
under  obligation  to  provide  for  the  whole  man.  The 
practical  difficulty  arising  from  the  diversity  of  creeds 
and  sects  in  the  Christian  Church  is  not  to  be  pleaded 
as  insuperable,  and  therefore  rendering  the  performance 
of  the  duty  impossible.  It  is  to  be  met  with  judgment 
and  prudence,  just  as  the  like  difficulty  is  met  in  other 
similar  cases.     There  are  almost  as  many  schools  of 


Exceptmis  to  Limitations.  245 

medicine  and  dietetics  as  there  are  sects  in  religion  ;  yet 
the  government  has  not  been  deterred  by  any  difficulty 
arising  from  this  fact  from  providing  medical  attendance 
and  a  course  of  diet  for  those  who  are  in  its  charge. 
The  United  States  government  has  already  recognized 
the  obligation  resting  upon  it  to  provide  for  the  teach- 
ing of  Christianity  in  such  cases. 

When  the  general  government  adopted  the  policy  of 
civilizing  the  Indians  by  the  establishment  of  schools 
among  them  for  the  instruction  of  their  children,  it  was 
felt  that  it  would  be  incongruous  with  all  enlightened 
ideas  of  civilization  to  provide  schools  for  these  wards 
of  the  nation  and  exclude  all  religious  instruction  from 
those  schools  ;  yet  under  the  impression  that  the  gov- 
ernment could  not  legitimately  teach  Christianity  it 
was  thought  necessary  to  adopt  a  plan  for  the  accom- 
plishment of  the  good  work  which  would  at  least  seem 
to  transfer  the  responsibility  to  other  parties.  What 
was  called  the  ' '  contract  system  ' '  was  therefore  adopted 
by  which  those  Christian  denominations  which  had 
competent  missionary  organizations  were  given  seve- 
rally the  charge  of  particular  Indian  schools.  In  these 
schools  religious  and  secular  instruction  was  to  be  given, 
and  the  denominations  in  charge  were  to  receive  from 
the  government  a  stipulated  amount  for  each  pupil. 

In  carrjang  out  the  plan  of  contract  schools  for  the 
Indian  children  it  was  found  necessary  in  order  to  allay 
the  opposition  that  might  arise  from  the  assumption 
that  the  government  could  not  in  any  case  legitimately 
engage  in  the  work  of  teaching  Christianity,  to  resort 
to  such  empt}'  and  pitiable  pleas  as — that  the  money 
appropriated  for  this  purpose  belonged  to  the  Indians 
by  right  and  was  not  taken  out  of  the  national  treasury, 
and  indeed  that  none  of  it  was  used  to  pay  for  religious 


246  Exceptions  to  Limitations. 


instruction,  since  the  religious  bodies  in  charge  of  the 
schools  contributed  from  their  benevolent  resources 
more  than  enough  to  pay  for  the  time  and  labor  em- 
ployed in  giving  such  instruction.  This  plan,  so  far  as 
it  was  intended  to  transfer  the  responsibility  of  the  re- 
ligious teaching  of  the  Indian  children  to  other  parties, 
was  utterly  futile,  for  the  government  as  principal  is  re- 
sponsible for  everything  that  its  agent  does  with  its 
knowledge  and  consent,  even  when  the  agent  works 
under  contract.  By  this  plan  the  government  becomes 
a  teacher,  not  only  of  Christianity,  but  of  sectarianism, 
for  it  cannot  be  pretended  that  the  religious  teaching 
given  by  Roman  Catholics,  Episcopalians,  Presbyteri- 
ans, Methodists,  and  Friends  will  not  be  more  or  less  in 
accordance  with  the  peculiar  doctrines  of  those  denomi- 
nations. The  teaching  of  religion  by  this  plan  is  there- 
fore far  more  incongruous  with  the  principles  of  our 
government  than  such  teaching  by  persons  appointed 
for  the  purpose  by  the  government  would  be.  If  in 
such  a  case  it  would  be  a  barbarous  method  of  civiliz- 
ing, to  establish  schools  and  exclude  all  religious  teach- 
ing from  them,  the  government  ought  to  teach  religion 
openly,  avowedly,  and  not  by  a  subterfuge. 

Had  not  the  government,  while  placing  the  Indian  on 
reservations  of  land,  recognized  his  independence  by 
making  treaties  with  him  and  purchases  of  him,  it 
would  have  been  under  obligation  to  teach  the  adult 
Indian  the  Christian  religion,  and  not  to  leave  him  as 
it  has  done  to  depend  on  voluntary  agencies  for  such 
teaching :  it  would  have  been  under  obligation  to 
enforce  with  prudence  and  consideration  a  prohibition 
of  his  paganism. 

In  the  lease  of  the  fur  seal  fisheries  on  the  islands  of 
St.  George  and  St.  Paul  in  the  territory  of  Alaska  made 


Religion  in  the  Public  Schools.  247 

by  the  government  to  the  North  American  Commercial 
Company,  one  of  the  stipvilations  requires  the  company 
to  provide  school-houses  and  competent  teachers  eight 
months  in  the  year,  and  a  house  of  religious  worship  ; 
and  hy  the  latter  clause  is  meant  a  house  of  Christian 
religious  worship,  not  a  house  of  pagan,  or  Jewish,  or 
Mohammedan  religious  worship. 

In  all  the  cases  mentioned,  it  is  the  duty  of  the  State 
not  only  to  provide  for  the  teaching  of  the  Christian 
religion,  but  to  prohibit  the  teaching  of  any  other  reli- 
gion, or  of  irreligion.  It  should  require  that  Christian 
religious  exercises  be  maintained  in  its  schools,  acade- 
mies, colleges,  and  universities  ;  and  should  also  require 
that  all  the  teaching  therein  should  be  professedly  in 
accord  with  the  truths  of  the  Christian  religion. 


CHAPTER  VII. 

RELIGION  IX    THE    PUBLIC   SCHOOLS. 

The  fact  that  our  civil  government  is  Christian  does 
not  in  itself  furnish  suflScient  ground  for  the  require- 
ment of  religious  teaching  in  our  public  schools  ;  nor  is 
the  relation  between  the  mental,  moral,  and  spiritual  in 
man  so  intimate  as  to  render  the  separate  development 
of  any  one  department  of  his  nature  either  impracti- 
cable or  necessarily  pernicious.  There  may  be  such 
an  order  of  dependence  that  it  will  be  possible  to  de- 
velop in  some  degree  the  mental  nature  without  at  the 
same  time  developing  the  moral  and  spiritual  ;  in  a 
less  degree,  the  moral  without  the  mental  ;  and  in  still 
less  degree,  the  spiritual  without  the  moral  and  mental. 
There  can  be  no  education,  in  the  proper  sense  of  the 
term,  unless  the  development  of  the  three  parts  of  our 


248  Religion  in  the  Public  Schools. 

nature  be  carried  forward  abreast  and  with  equal  pace  ; 
but  it  is  not  necessary  that  this  should  all  be  done  at 
the  same  hour  or  by  the  same  agency.  In  this  case 
the  State  is  not  in  loco  parentis  ;  it  does  not  take  charge 
of  the  whole  life  of  the  pupil.  It  is  charged  with  pro- 
viding for  only  one  of  the  wants  of  his  nature.  Were 
it  in  charge  of  the  whole  life  of  the  pupil,  it  would  be 
under  obligation  to  provide  for  the  nourishment  of  his 
body.  It  knows  however  that  another  and  better 
agency,  the  family,  is  making  provision  for  that  want ; 
and  while  it  may  be  true  that  all  families  are  not  com- 
petent to  provide  the  most  wholesome  food,  yet  the 
State  is  not  chargeable  with  inhumanity  in  refusing  to 
make  this  provision.  It  does  not  thereby  leave  the  pupil 
to  starve.  So  in  refusing  to  make  provision  for  the  re- 
ligious development  of  the  pupil  in  the  public  schools 
it  cannot  be  justly  accused  with  being  irreligious  or 
anti-Christian.  It  does  not  thereby  deprive  him  of  all 
spiritual  nurture.  It  knows  that  other  and  better 
agencies,  the  family  and  the  church  divinely  appointed 
for  the  purpose,  are  making  provision  for  that  want ; 
and  it  simply  leaves  that  very  important  provision  to 
be  made  by  those  agencies.  Those  Roman  Catholics, 
Lutherans,  and  Reformed,  who  withdraw  their  children 
from  the  public  schools  and  send  them  to  parochial 
schools,  and  who  seem  to  have  a  just  ground  of  opposi- 
tion to  the  public-school  system  in  that  they  are 
taxed  for  a  public  provision  which  they  cannot  con- 
scientiously use,  do  not  over-estimate  the  importance 
of  religious  instruction  for  the  young ;  but  they  mis- 
take in  thinking  that  the  State  is  under  obligation  to 
give  such  instruction  or  none  at  all.  The  public-school 
system  has  not  been  fitted  for  that  work,  and  in  this 
country  it  would  be  impracticable  to  fit  it  for  that 


State  Requirements  of  Teachers.         249 

work.  It  requires  of  its  teachers,  besides  a  good 
moral  character,  only  qualifications  for  teaching  cer- 
tain branches  of  secular  learning  ;  it  does  not  require 
the  qualifications  necessary  for  the  conducting  of  re- 
ligious services  or  the  imparting  of  religious  knowl- 
edge. It  cannot  be  true  that  a  particular  work 
belongs  to  the  public  school  system  and  is  obligatory, 
when  the  regulations  of  the  system  do  not  and  cannot 
require  of  the  teachers  the  qualifications  necessary  for 
the  performance  of  that  work.  An  atheist  might  pos- 
sess all  the  qualifications  required  for  teaching  in  our 
public  schools,  and  it  would  certainly  be  an  incongru- 
ous thing  to  have  an  established  order  which  would 
require  such  a  one  to  lead  in  the  reading  of  the  Scrip- 
tures and  in  the  repeating  of  the  Lord's  Prayer  as  an 
act  of  worship. ' 

'  Unless  it  shall  be  decided  that  the  teacher  in  the  public 
school  is,  like  the  janitor,  an  employe,  and  not  the  incumbent 
of  an  office  or  the  fiduciary  of  a  public  trust,  the  requirement 
of  a  religious  qualification  as  a  condition  of  his  appointment 
would  be  a  violation  of  that  clause  in  the  State  and  Federal 
Constitutions  which  prohibits  a  religious  test  as  a  qualification 
to  any  office  or  public  trust.  The  requirement  of  a  religious 
qualification  is  undoubtedly  made  in  the  case  of  chaplains,  and 
the  qualification  required  is  more  than  merely  religious, — it  is 
Christian,  no  minister  of  any  other  religion  being  eligible  ;  but 
the  requirement  is  only  tacitly,  not  formally,  made.  This  qualifi- 
cation being  essential  to  the  performance  of  the  functions  of  the 
office,  the  requirement  of  it  is  necessarily  involved  in  the  insti- 
tution of  the  office.  Since  none  but  ministers  of  the  gospel  are 
ever  appointed  to  the  office,  it  is  not  necessary  that  the  require- 
ment of  a  religious  qualification  should  be  formally  made  ;  their 
ordination  being  a  formal  guaranty  of  their  possessing  it. 
Teachers  in  the  public  schools,  however,  occupy  no  position 
which  furnishes  any  such  guaranty.  The  requirement,  if 
made  in  their  case,  would  have  to  be  formally  made,  and  it  is 


250  Religion  in  the  Public  Schools. 

It  may  not  be  impertinent  to  notice  the  fact  that 
the  persons  making  the  demand  for  religious  in- 
struction in  the  public  schools  are  not  consistent  in 
carrying  out  the  principle  on  which  they  say  the  de- 
mand is  based,  in  that  they  do  not  insist  upon  the 
application  of  the  principle  in  those  cases  in  which 
they  might  do  so  with  justice  and  with  a  reasonable 
prospect  of  success.  The  master,  teaching  the  ap- 
prentice his  trade,  the  private  tutor,  and  the  music 
teacher  are  not  required  to  begin  their  lessons  with 
prayer,  or  to  combine  the  communication  of  religious 
with  secular  knowledge.  Such  a  requirement  is  not 
made  of  the  commercial  college,  the  medical  college,  or 
the  law  school,  and  jet  all  these  are  patronized  by  all 
Christian  people  without  objection.  Why  is  not  all 
the  teaching  in  these  cases  denounced  as  ' '  godless ' ' 
and  therefore  pernicious,  as  well  as  the  teachings  in 
the  public  schools.  Indeed  it  is  practically  conceded 
in  these  cases  that  secular  instruction,  unaccompanied 
with  religious  instruction,  is  not  necessaril}^  pernicious. 

There  are,  however,  two  other  ostensible  grounds 
upon  which  the  demand  for  religious  instruction  in  our 
public  schools  may  be  based.  One  of  these  we  shall 
now  consider ;  the  other  we  .shall  notice  incidentally 
farther  on. 

The  first  attaches  itself  very  closely  to  the  ground 
upon  which  the  system  itself  is  supposed  to  be  based. 

not  probable  that  such  a  requirement,  so  made,  would  be 
tolerated  by  the  public  or  sustained  by  the  courts.  If  the  re- 
quirement were  deemed  to  be  as  essential  to  the  office  of  teacher 
as  it  is  to  the  office  of  chajjlain,  that  office  oui^ht  to  be  ex- 
pressly excepted  from  the  Constitutional  prohibition.  Indeed 
it  would  have  been  better  had  the  office  of  chaplain  been  so 
excepted. 


The  Essentials  of  Good  Citizenshif>.       25  i 

The  theory  may  be  stated  thus  :  Intelligence  is  neces- 
sary to  good  citizenship  ;  therefore  the  State  is  bound 
to  furnish  all  the  j-outh  of  the  land  with  such  instruc- 
tion as  will  enable  them  to  avail  themselves  of  the  or- 
dinary means  of  intelligence,  and  also  to  compel  attend- 
ance upon  the  instruction  provided.  In  syllogistic 
form,  the  theory  would  be  thus  stated,  viz.: 

Major  premise.  Self-preservation  is  a  law  that  binds 
the  State  as  well  as  the  individual,  and  under  this  law 
the  State  is  bound  to  provide  whatever  is  essential  to 
good  citizenship. 

Miliar  premise.  Education  is  essential  to  good  citizen- 
ship. 

Conclusion.  Therefore  the  State  ought  to  provide  com- 
mon schools  and  compel  attendance  upon  them. 

It  is  very  plain  that  if  any  other  subject  than  educa- 
tion may  be  properly  put  before  the  predicate  in  the 
Minor  premise,  the  syllogism  will  be  as  conclusive  for 
that  subject  as  it  is  for  education.  If  it  be  true  that 
"  the  fear  of  the  L,ord  is  the  beginning  of  wisdom," — 
if  it  be  true  that  an  illiterate  disciple  of  Christ  whose 
' '  delight  is  in  the  law  of  the  Lord  ' '  will  be  a  better  citi- 
zen than  the  educated  unbeliever  who  walks  ' '  in  the 
coimsel  of  theungodl}',"  then,  according  to  this  theor}-, 
it  is  just  as  conclusive  that  the  State  should  provide  for 
religious  instruction  in  the  common  school  as  that  it 
should  provide  the  school  itself.  But  the  theory  is  too 
comprehensive  by  far  to  be  tenable.  Suppose  that  the 
Mi?ior premise  of  the  sj'llogism  affirm  that  the  influence 
of  religion  not  only  in  childhood,  but  throughout  life,  is 
essential  to  good  citizenship  (and  who  will  deny  the 
truth  of  the  affirmation  ?),  then  it  is  just  as  conclusive 
that  the  State  should  provide  for  the  religious  instruc- 
tion of  the  adult  as  for  that  of  the  child.     There  is  no 


252  Religion  in  the  Public  Schools. 

open  link  in  this  logic  ;  it  cannot  be  parted  in  the  mid- 
dle ;  it  reaches  all  the  way  from  the  compulsory  at- 
tendance of  children  upon  the  public  school  to  the 
compulsory  attendance  of  adults  upon  public  worship. 
The  logic  of  this  theory  of  the  public-school  system  is 
the  same  as  that  of  Article  III.  of  the  Bill  of  Rights, 
adopted  by  Massachusetts  in  1780  : 

'  'As  the  happiness  of  a  people  and  the  good  order  and 
preservation  of  civil  government  essentially  depend 
upon  piety,  religion,  and  morality  ;  and  as  these  cannot 
be  generally  diffused  through  a  community  but  by  the 
institution  of  the  public  worship  of  God,  and  of  public 
instructions  in  piety,  religion,  and  morality.  There- 
fore, to  promote  their  happiness  and  to  secure  the  good 
order  and  preservation  of  their  civil  government,  the 
people  of  this  commonwealth  have  a  right  to  invest 
their  legislature  with  power  to  authorize  and  require 
the  several  towns,  parishes,  precincts,  and  other  bodies 
politic,  or  other  religious  societies,  to  make  suitable 
provision  at  their  own  expense  for  the  institution  of 
the  worship  of  God  and  for  the  support  and  mainten- 
ance of  public  Protestant  teachers  of  piety,  religion, 
and  morality  in  all  cases  where  such  provision  is  not 
made  voluntarily. 

' '  And  the  people  of  this  commonwealth  have  a  right, 
and  do  invest  their  legislature  with  authority  to  enjoin 
upon  all  the  subjects  an  attendance  upon  the  instruc- 
tions of  the  public  teachers  aforesaid  at  stated  times 
and  seasons,  if  there  be  any  on  whose  instructions  they 
can  conscientiously  and  conveniently  attend." 

The  logic,  granting  the  assumption  on  which  it  is 
based,  is  as  unanswerable  in  the  one  case  as  it  is  in 
the  other. 

This  theory  of  the  public-school  system,    notwith- 


The  Theory  of  General  Consent.  253 

standing  that  it  is  affirmed  in  all  the  school  journals, 
in  all  teachers'  associations,  County,  State,  and  Na- 
tional, by  all  County  and  State  superintendents  of 
public  schools,  and  acted  upon  by  all  the  State  legisla- 
tures, has  been  practically  abandoned  by  all  its  advo- 
cates. It  has  been  abandoned  in  the  establishment  of 
high-schools  and  State  universities.  Nobody  pretends 
that  a  knowledge  of  algebra,  geometry,  conic  sections, 
calculus,  physics,  chemistry,  geolog}^  astronomy,  of 
the  French,  German,  Greek,  and  Latin  languages,  is 
essential  to  good  citizenship,  or  that  the  provision  for 
the  teaching  of  these  things  in  our  public  schools  and 
State  universities  rests  on  any  such  basis.  These  things 
are  taught  to  the  few  at  the  expense  of  the  many,  in 
direct  violation  of  the  fundamental  postulate  of  the 
theory.  Yet  nobody  seems  disposed  either  to  object  to 
the  violation  or  to  confess  an  abandonment  of  the  the- 
ory. The  reason  of  the  inconsistency  is  to  be  found  in 
the  fact  that  a  different  theory  is  half-consciously  held, 
but  is  so  simple  and  obvious  that  it  is  hardly  thought 
of,  much  less  propounded  as  a  theory.  It  is  the  theory 
of  general  consent.  This  theory,  on  account  of  its  sim- 
plicity, has  held  its  place  in  practice  while  the  other 
has  continued  to  hold  its  place  in  discourse. 

While  the  primary  function  of  civil  government  is 
the  protection  of  the  citizen  from  the  unjust  interfer- 
ence of  his  fellow-citizen  with  his  person  and  property, 
and  while  as  a  general  rule  the  public  welfare  will  be 
highest  w^hen  the  government  confines  itself  to  its 
primary  function,  leaving  all  else  to  individual  free- 
dom ;  yet,  because  what  Terence  said  of  himself  is 
also  true  of  all  men,  —  "  I  am  a  man,  and  I  count  noth- 
ing human  as  foreign  to  me," — consent  is  readily  given 
that  the  government  shall  do  many  things  which  do 


2  54  Religion  in  the  Public  Schools. 

not  belong  to  its  primary  function,  the  provision  under- 
stood being  that  it  does  not  renounce  the  principles  of 
freedom  and  assume  the  principles  of  paternalism. 

Without  considering  whether  there  is  a  natural  right 
of  property  in  the  form  in  which  thought  is  expressed  or 
conception  realized,  as  well  as  in  the  paper,  marble- 
canvas,  or  machine  upon  which  the  hand  has  wrought, 
we  readily  concede  that  the  government  may  very 
properly  promote  literature  and  art  by  giving  a  copy- 
right to  the  author  and  artist  ;  it  may  encourage 
invention  by  giving  a  patent  to  the  inventor  ;  it  may 
also  promote  science  by  fitting  out  expeditions  for  ex- 
ploration and  discovery,  by  providing  for  astronomical 
observations  and  meteorological  investigations,  and  by 
maintaining  museums  ;  it  may  establish  a  weather  ser- 
vice, and  make  daily  announcements  of  the  coming  of 
storms  and  changes  in  temperature  ;  it  may  maintain 
parks  for  the  pleasure  of  the  people  ;  it  may  diminish 
the  perils  of  the  sea  by  making  surv^eys  and  charts  of 
all  the  coasts,  establishing  light-houses  and  maintain- 
ing life-saving  stations,  along  all  our  shores  ;  it  may 
maintain  a  postal  system,  carrying  the  letters,  the 
newspapers,  and  periodicals  of  the  people, — all  this 
upon  the  ground  of  general  consent,  and  not  upon 
the  ground  of  inherent  prerogative  or  indispensable 
obligation. 

The  postal  system  is  one  that  contributes  v^ry  greatly 
to  the  promotion  of  intelligence  among  the  people,  and 
supplies  a  facility  of  immense  importance  to  the  busi- 
ness of  the  countiy,  but  that  system  has  not  its  basis 
in  the  duty  of  the  government,  in  its  paternal  character 
to  promote  the  intelligence  and  prosperity  of  the  people. 
Why  when  it  added  the  carrj^ing  of  parcels  to  that  sys- 
tem did  it  not  also  add  the  whole  business  of  transpor- 


Theory  of  Good  Citi3e7iship.  255 


tation  ?  Why  when  it  added  the  transmission  of  small 
sums  of  money  to  that  system  did  it  not  also  add  the 
whole  banking  business  of  the  country  ?  Why  is  the 
telegraph  system,  which  promotes  intelligence  by  the 
transmission  of  the  daily  news  and  affords  a  facility  of 
immense  importance  to  the  business  of  the  country, 
left  in  private  hands?  May  it  not  be  safely  predicted 
that  if  the  telegraph  system  shall  ever  be  incorporated 
with  the  postal  system,  it  will  be  to  protect  the  citizen 
from  the  unjust  exactions  of  a  monopoly,  and  not  be- 
cause the  government  is  bound  in  its  paternal  character 
to  make  the  intelligence  and  prosperity  of  the  people 
one  of  its  chief  concerns.  Would  any  one  think  of 
arguing  that  because  the  postal  system  promotes  the 
intelligence  of  the  people  and  was  provided  for  that 
purpose,  every  citizen  should  be  compelled  to  receive 
through  the  mails  certain  periodical  publications  graded 
according  to  his  intelligence,  and  to  exercise  himself  in 
composition  by  writing  a  certain  number  of  letters 
every  week. 

The  postal  system  and  the  public-school  system, 
alike,  have  their  basis  in  general  consent,  which  is 
given  on  account  of  economy,  efficiency,  uniformity, 
equal  and  perpetual  availibility  for  all  the  people.  If 
the  alleged  basis  of  the  public-school  system  in  the 
paternal  prerogative  of  the  State  and  its  right  of  self- 
presentation  should  be  abandoned  in  theory,  as  it  has 
been  in  practice  (of  which,  it  must  be  admitted,  there  is 
not  the  least  reasonable  prospect),  it  would  be  far  more 
just  if,  as  in  the  postal  system,  the  public  provision 
were  made,  only  the  cost  charged  for  the  use  of  it,  only 
those  who  use  it  required  to  pay  for  the  maintenance 
of  it,  and  they  to  pay  only  in  proportion  to  the  use 
they  make   of  it.     Under  such   a  plan  arrangements 


256  Religiofi  in  the  Ptiblic  Schools. 

might  be  made  which  would  remove  some  present  diffi- 
culties, without  developing  others  not  now  existing. 
The  postal  laws  allow  railroad,  express,  and  naviga- 
tion companies  to  carrj^  their  own  correspondence,  and 
make  no  exactions  of  them  for  the  support  of  the  postal 
system.  So  under  a  public-school  system  similarly  or- 
ganized, those  Christian  people  who  feel  bound  in  con- 
science to  maintain  parochial  schools  might  be  allowed 
to  do  so,  without  being  subject  to  the  injustice  of  pay- 
ing taxes  for  the  teaching  of  the  children  of  other 
people,  while  bearing  all  the  expense  of  teaching  their 
own ;  and  without  being  liable  to  the  charge  of  hos- 
tility to  a  system  which  has  been  established  to  secure 
the  welfare  and  safety  of  the  State.  The  State  might 
prohibit  the  teaching  of  any  other  children  in  the  paro- 
chial schools,  as  it  prohibits  the  corporations  referred 
to  carrying  any  other  than  their  own  correspondence  ; 
it  might  also  prohibit  the  establishment  of  parochial 
schools  where,  on  account  of  the  sparseness  of  the 
population,  they  would  cripple  or  destroy  the  public 
schools  ;  and  it  might  require  that  the  teaching  in  the 
parochial  schools  be  in  the  English  language. 

Objection  might  be  made  that,  while  the  plan  of 
requiring  those  who  use  the  public  schools  to  pay  the 
cost  of  maintaining  them  might  be  more  just,  it  would 
fail  to  reach  the  very  persons  who  were  in  most  need 
of  its  advantages,  and  would  deprive  the  State  of  the 
very  benefit  the  system  was  intended  to  secure.  It  may 
be  a  question,  however,  whether  gratuitousness  is  the 
only  or  the  best  means  of  securing  the  prevalence  of  a 
common  education.  There  can  be  no  doubt  that  with 
all  its  advantages  it  is  attended  with  counteracting 
evils.  People  do  not  appreciate  that  which  costs  them 
nothing  as  they  do  that  which  they  have  to  pay  for. 


Gratuitous  Education.  257 

To  pauperize  the  people  is  to  shrivel  the  nerves  of  en- 
ergy and  to  destroy  the  spirit  of  self-reliance, — evils 
which  an  enlightened  public  policy  regards  as  of  no 
small  moment.  It  is  probable  that  the  requirement  of 
an  educational  qualification  for  the  exercise  of  the  elec- 
tive franchise,  with  other  co-operating  influences,  would 
be  quite  as  effective  to  the  end  desired  as  mere  freedom 
from  charge.  This  opinion  is  not  without  the  support 
of  facts.  The  State  derives  a  very  important  benefit 
from  the  prevalence  of  religion  among  the  people,  but 
that  benefit  is  left  by  the  State  to  be  provided  entirely 
at  the  expense  of  those  who  desire  it,  and  there  can  be 
no  doubt  that  the  public  benefit  from  that  source  is  as 
large  in  this  country  under  this  system  as  it  is  else- 
where under  a  Church  and  State  sj-stem.  De  Tocque- 
ville  in  his  Democracy  hi  America  says  :  "  There  is  no 
country  in  the  whole  world  in  which  the  Christian 
religion  retains  a  greater  influence  over  the  souls  of 
men  than  in  America.  .  .  .  Upon  my  arrival  in 
the  United  States  the  religious  aspect  of  the  country 
was  the  first  thing  that  struck  my  attention,  and  the 
longer  I  stayed  there  the  more  did  I  perceive  the  great 
political  consequences  resulting  from  this  state  of 
things.  ...  I  questioned  the  members  of  all  the 
different  sects,  and  I  more  especially  sought  the  society 
of  the  clergy.  ...  I  found  that  they  differed  upon 
matters  of  detail  alone,  and  that  thej'  mainly  attributed 
the  peaceful  domain  of  religion  in  their  country  to  the 
separation  of  Church  and  State."  * 

Mr.  James  Bryce  says  :   ' '  To  estimate  the  influence 
and  authority  of  religion  is  not  eas}-.     Suppose,  how- 
ever, we  take  either  the  habit  of  attending  church  or 
the  sale  of  religious  books  as  evidences  of  its  influence 
'  1848,  vol.  i.,  pp.  332,  337. 


258         Religion  i7i  the  Public  Schools. 


among  the  multitude  ;  suppose  that  as  regards  the 
more  cultivated  classes  we  look  at  the  amount  of  re- 
spect paid  to  Christian  precepts  and  ministers,  the 
interest  taken  in  theological  questions,  the  connection 
of  philanthropic  reforms  with  religion.  Adding  these 
various  data  together,  we  may  get  some  .sort  of  notion 
of  the  influence  of  religion  on  the  American  people  as 
a  whole.  ...  In  all  these  respects  the  influence 
of  Christianity  seems  to  be,  if  we  look  not  merely  to 
the  numbers  but  also  to  the  intelligence  of  the  persons 
influenced,  greater  and  more  wide  spread  in  the  United 
States  than  in  any  part  of  western  Continental  Europe, 
and  I  think  greater  than  in  England."  ' 

This  fact  thus  attested  by  discerning  and  impartial 
foreigners  is  pertinent  by  way  of  analogy,  but  we  have 
a  fact  more  directly  pertinent  in  the  condition  of  educa- 
tion in  Iceland.  That  island  is  outside  of  the  world's 
great  currents  of  intelligence  and  literature,  and  yet  it 
is  said  to  be  the  best  educated  country  on  the  face  of 
the  earth.  Mr.  John  Thorgeirson,  in  a  communication 
to  one  of  our  religious  journals,  says:  "  The  general 
education  in  Iceland  is  wholly  domestic,  and  there  are 
no  public  schools  in  the  country  ;  neither  any  direct 
compulsory  educational  law.  But  the  laws  and  cus- 
toms of  the  country  demand  that  every  parent  or  guar- 
dian of  children  shall  under  the  direction  of  the  parish 
minister  teach  those  in  their  care  to  read,  write,  and 
cipher,  and  instruct  them  in  domestic  science,  general 
history,  and  especially  in  the  literature  of  their  own 
country.  .  .  .  Persons  that  can  neither  read  nor 
write  in  Iceland  are  b}'  law  and  custom  regarded  as 
mental  imbeciles.  They  are  not  regarded  competent 
to  manage  any  inheritance  left  to  him  or  her,  but  nuist 
'  The  American  Coiiunoiiwcalih,  vol.,  ii.,  p.  583. 


Education  in  Iceland.  259 

remain  wards.  They  are  not  allowed  to  inarr>',  as  they 
would  be  incapable  of  educating  children  ;  neither  are 
the}'  regarded  as  bright  enough  to  understand  the 
meaning  of  an  oath,  and  hence  are  not  competent  wit- 
nesses in  court."  ' 

These  statements  are  confirmed,  in  general,  by  one 
of  the  authors  of  the  article  in  the  Encyclopedia  Bri- 
tannica  on  "  Iceland,"  J.  A.  Hjaltalin,  who  sa)'S  :  "  The 
Icelanders  have  long  been  famous  for  their  education 
and  learning,  and  it  is  no  exaggeration  to  say  that  in  no 
other  country  is  such  an  amount  of  information  found 
among  the  classes  which  occupy  a  similar  position.  A 
child  of  ten  unable  to  read  is  not  to  be  found  from  one 
end  of  the  island  to  the  other.  A  peasant  understand- 
ing several  languages  is  no  rarity,  and  the  amount  of 
general  information  which  they  possess  might  be  envied 
b}-  many  who  have  had  greater  facilities  for  acquiring 
knowledge.  Till  within  the  last  few  years  there  were 
no  elementary  schools  on  the  island  ;  all  the  children 
were  taught  by  their  parents  or  near  neighbors.  Now 
a  few  elementary  schools  have  been  started,  but  their 
number  is  still  too  small  to  make  any  general  difference 
in  the  education."  ^ 

'  The  Independent,  1893,  p.  1336. 

-  We  are  aware  that  any  state  of  things  which  has  become 
institutional  in  any  countrj'  is  the  product  of  all  antecedent 
conditions  and  is  fixed  by  its  adaptation  to  present  circum- 
stances. To  suppose,  therefore,  that  the  educational  methods 
of  Iceland  could  be  transplanted  and  flourish  in  this  country 
would  be  almost  as  unreasonable  as  to  suppose  that  the  Iceland 
moss  could  be  transplanted  and  made  to  flourish  on  all  our 
mountains  ;  yet,  such  examples  if  kept  in  mind  will  encourage 
and  reinforce  the  sense  of  justice  until  a  way  shall  be  found  to 
remove  all  unnecessary'  hardship  and  renied\-  all  inju?tice. 

The  public  school  must  be  accepted  as  an  established  institu- 


26o         Religion  in  the  Public  Schools. 

The  exercise  of  paternal  prerogatives  on  the  part  of 
the  government  is  not  necessary  to  the  attainment  of 
the  end  aimed  at  in  the  establishment  of  a  public-school 

tion  of  this  land.  Whatever  may  be  the  defects  of  the  theories 
invented  to  serve  as  the  basis  of  it,  the  benefits  to  be  derived 
from  it  are  so  obvious  and  so  great  that  it  is  not  likely  ever  to 
be  abandoned.  There  is  no  more  probability  that  it  will  ever 
be  transferred  to  private  hands  than  there  is  that  the  postal 
system  will  be  transferred  to  the  express  companies.  The  lat- 
ter system  was  not  by  any  means  perfect  when  first  adopted. 
It  has  undergone  many  modifications,  improving  it  and  adapt- 
ing it  to  new  conditions,  and  all  without  a  word  of  opposition, 
simply  because  the  defects  were  pointed  out  and  the  changes 
suggested  by  those  who  were  known  to  desire  its  improvement 
and  not  its  destruction.  It  is  not  unreasonable  to  believe  that 
the  public-school  system  will  undergo  modification  when  the 
defects  are  pointed  out  and  the  alterations  are  proposed  by 
persons  who  cannot  be  suspected  of  secret  unfriendliness  or  of 
a  covert  purpose  to  destro}'  it. 

The  Roman  Catholic  Church,  which  is  by  far  the  most  con- 
spicuous complainant  of  the  injustice  of  our  public-school  sys- 
tem, has  itself  put  a  check  upon  any  tendency  there  might  be 
to  remove  the  injustice  complained  of.  Holding  an  uu-catho- 
lic  theory  of  the  Church,  a  remnant  of  the  hortus  siccus  of 
mediaeval  logic,  it  is  unwilling  to  admit  that  it  is  only  a  part  of 
the  kingdom  of  Christ  on  earth,  a  branch  of  the  true  vine,  and 
— to  use  its  own  phraseology — a  sect  among  sects,  and,  like  the 
Apostle  John,  who  said,  "  Master,  we  saw  one  casting  out  devils 
in  thy  name  and  he  followeth  not  us,  and  we  forbade  him 
because  he  followeth  not  us,"  it  has  laid  the  ban  on  all  Protes- 
tantism, affirming  that  all  religious  teaching  by  Protestants,  or 
by  others  than  regularly  authorized  Roman  Catholic  ecclesias- 
tics, is  so  pernicious  as  to  be  worse  than  none.  It  denounces 
as  "  godless  "  schools  in  which  there  is  no  religious  teaching, 
and  proclaims  by  its  actions  that  it  regards  all  schools  in  which 
there  is  unsectarian  religious  teaching  by  Protestants  as  worse 
than  "godless."  Its  protest  against  our  public-school  system 
is  twofold  :  a  protest  against  a  purely  secular  education  ;  and  a 


P^'otcst  of  the  Roman  CatJioIic  CJmrch.      261 

system.  Neither  is  the  paternal  theory  of  government 
necessary  as  a  basis  for  a  pubhc-school  system.  That 
theory    may   be   rejected,  with    all  its  logical   conse- 

protest  against  any  non-sectarian  or  Protestant  religious  instruc- 
tion therein.  The  latter,  though  kept  in  the  background  in 
all  public  discussions  of  the  subject,  is  held  to  be  of  equal  im- 
portance with  the  former.  Where  it  could  not  have  its  own 
sectarian  teaching  established  in  the  public  schools  it  has  at- 
tempted to  exclude  all  religious  instruction  therefrom  (see  the 
cases,  presently  to  be  cited,  of  Donahue  v.  Richards  in  Maine, 
and  John  D.  Minor  et  al.  v.  the  Board  of  Education  of  the  City 
of  Cincinnati  et  al.  in  Ohio),  and  in  some  cases,  by  the  co-opera- 
tion of  those  who  hold  the  anti-Christian  theory  of  the  State,  it 
has  succeeded  in  the  attempt,  thus  causing  the  rights  of  a  great 
majority  of  Christian  people  to  be  trampled  upon,  and  a  serious 
injury  to  be  inflicted  upon  the  public.  (See  the  case  of  Weiss 
et  al.  V.  District  Board  of  School  District  No.  8,  of  the  City  of 
Edgerton,  in  Wisconsin,  presently  to  be  cited.) 

Is  it  at  all  strange  that  Protestants  are  slow  to  accede  to  a  de- 
mand which  involves  such  unfavorable  implications  against 
themselves,  and  which  no  Protestant  sect  is  narrow  and  bigoted 
enough  ever  to  think  of  making  for  itself  ?  Protestants  are  will- 
ing to  fulfil  the  Lord's  injunction,  "All  things,  whatsoever  ye 
would  that  men  should  do  to  you,  do  ye  even  so  to  them,"  but 
they  do  not  feel  under  obligation  to  go  beyond  it.  It  is  probable 
therefore  that  the  great  mass  of  the  people  will  be  content  with 
the  public-school  system  as  it  is,  whatever  may  be  its  basis,  so 
long  as  it  may  be  made  Christian  without  being  sectarian.  They 
count  it  no  injustice  that  their  own  sectarian  teachings  are  ex- 
cluded, and  it  is  therefore  difficult  for  them  to  regard  the  exclu- 
sion of  Roman  Catholic  sectarian  teaching  as  an  injustice. 
Could  a  new  system  be  proposed  which  would  afford  the  relief 
desired,  and  at  the  same  time  secure  all  the  beneficent  results 
of  the  old,  without  producing  any  new  evils,  they  would  no 
doubt  readily  make  the  change.  The  presentation  of  such  a 
system,  and  not  complaint  of  the  injustice  of  the  old,  is  the 
thing  to  be  done.  When  the  conditions  of  the  public  welfare 
are  such  that  hardship  must  fall  upon  persons  whose  consciences 


262  Religion  in  the  Public  Schools. 

quences,  and  yet  may  the  State  properly  maintain  such 
a  system. 

Mr.  Macaulay,  in  his  review  of  Gladstone's  The  State 
in  its  Relations  with  the  Church,  states  very  clearly  and 
illustrates  very  aptly  the  principle  for  which  we  are 
contending.  He  says  :  "  We  consider  the  primary  end 
of  government  as  a  purely  temporal  end,  the  protection 
of  the  persons  and  property  of  men.  .  .  .  We  think 
that  government  should  be  organized  solely  with  a  view 
to  its  main  end,  and  that  no  part  of  its  efficiency  for 
that  end  should  be  sacrificed  in  order  to  promote  any 
other  end,  however  excellent.  But  does  it  follow  from 
thence,  that  governments  ought  never  to  pursue  any 
end  other  than  the  main  end  ?  In  no  wise.  Though 
it  is  desirable  that  every  institution  should  have  a  main 
end,  and  should  be  so  formed  as  to  be  in  the  highest 
degree  efficient  for  that  end  ;  yet  if,  without  any  sacri- 
fice of  its  efficiency  for  that  end,  it  can  pursue  any  other 
good  end,  it  ought  to  do  so.  Thus  the  end  for  which  a 
hospital  is  built  is  the  relief  of  the  sick,  not  the  beauti- 
fying of  the  street.  To  sacrifice  the  health  of  the  sick 
to  splendor  of  architectural  effect ;  to  place  the  build- 
ing in  a  bad  air,  only  that  it  may  present  a  more  com- 
manding front  to  a  great  public  place  ;  to  make  the 
wards  hotter  or  cooler  than  they  ought  to  be  in  order 
that  the  columns  and  windows  of  the  exterior  may 
please  the  passers-by,  would  be  monstrous.  But  if, 
without  any  sacrifice  of  the  chief  object,  the  hospital 
can  be  made  an  ornament  to  the  metropolis,  it  would 

will  not  permit  them  to  conform  to  those  conditions,  those  per- 
sons have  no  just  ground  of  complaint  so  long  as  they  are  not 
compelled  to  do  what  their  conscience  forbids.  In  that  case 
the  individual  must  endure  hardship  for  conscience'  sake  ;  the 
public  welfare  should  not  be  sacrificed  for  his  relief. 


The  Principle  for  zuhich  we  Contend.      263 

be  absurd  not  to  make  it  so.  In  the  same  manner,  if 
a  government  can  without  any  sacrifice  to  its  main  end 
promote  any  other  good  work,  it  ought  to  do  so.  The 
encouragement  of  the  fine  arts,  for  example,  is  by  no 
means  the  main  end  of  government,  and  it  would  be 
absurd  in  constituting  a  goveniment  to  bestow  a  thought 
upon  the  question,  w^hether  it  would  be  a  government 
likely  to  train  Raphaels  and  Domenichinos.  But  it  by 
no  means  follows  that  it  is  improper  for  a  government 
to  form  a  national  gallery  of  pictures.  The  same  may 
be  said  of  patronage  bestow^ed  on  learned  men,  of  the 
publication  of  archives,  of  the  collecting  of  libraries, 
menageries,  plants,  fossils,  antiques,  of  journeys  and 
voj'ages  for  purposes  of  geographical  discover}^  or  as- 
tronomical observ^ation.  It  is  not  for  these  ends  that 
government  is  constituted.  But  it  may  w^ell  happen 
that  a  government  may  have  at  its  command  resources 
which  will  enable  it,  without  any  injury  to  its  main  ob- 
ject, to  pursue  these  collateral  ends  far  more  eflfectuall)^ 
than  any  individual  or  voluntary  association  could  do. 
If  so,  government  ought  to  pursue  these  collateral 
ends.'" 

Upon  the  theory  we  have  been  setting  forth,  religion 
may  very  well  have  a  place  in  the  public  schools,  just 
as  music,  pictures,  flowers,  and  calisthenics  have,  by 
general  consent.  And  let  it  be  remembered  that  the 
consent  which  gives  legal  validity  to  a  usage  \s  general, 
not  necessarily  una7iimo2is  consent.  The  tenure  w^ould 
be  a  valid  and  strong  one,  but  religious  exercises  ought 
not  to  be  made  an  indispensable  requirement.  On  the 
one  hand,  pupils  whose  parents  are  conscientiousU'  op- 
posed to  such  exercises  ought  not  to  be  compelled  to 
attend  upon  them.  On  the  other  hand,  such  exercises 
'  Edinbtirgh  Revieiv,  April,  1839,  and  Essays. 


264         Religion  in  the  Public  Schools. 

ought  not  to  be  prohibited  upon  the  demand  of  unbe- 
lievers, any  more  than  pictures  and  music  and  flowers 
ought  to  be  prohibited  upon  the  demand  of  boors.  On 
the  one  hand,  nobody  has  a  right  to  demand  that  the 
State  should  provide  sustenance  for  the  pupils  in  the 
common  schools.  On  the  other  hand,  nobody  has  a 
right  to  demand  that  every  provision  looking  to  the 
bodily  welfare  of  the  pupils,  hygiene  and  calisthenics, 
for  example,  should  be  excluded.  So  on  the  one  hand, 
nobody  has  a  right  to  demand  that  full  courses  of  reli- 
gious instruction  be  given  in  our  common  schools  ;  and 
on  the  other  hand,  nobody  has  any  right  to  demand  that 
everything  of  a  religious  character  be  excluded.' 

It  is  a  happy  circumstance  that  so  large  a  proportion 
of  the  teachers  in  our  common  schools  have  the  es- 
thetic and  religious  feelings  which  make  it  a  pleasure  to 
them  to  bring  into  the  school-room,  not  only  the  refin- 
ing and  elevating  influence  of  music  and  pictures  and 
flowers,  but  also  of  a  simple  unsectarian  Christian  wor- 
ship. Those  who  do  so  ought  not  to  be  interfered  with 
either  upon  the  plea  that  our  civil  institutions  are  desti- 
tute of  religious  character, — an  untenable  plea,  as  we 
have  already  shown, — nor  upon  the  plea  of  injustice  to 
the  unbelieving  taxpayer, — also  an  untenable  plea,  as  we 
shall  presently  show.  All  these  means  of  refining  and 
elevating  the  character,  however,  should  be  kept  in  a 
subordinate  position,  as  accessories  to  the  main  purpose 
of  the  school.  The  State  is  not  qualified  to  give  full 
courses  of  religious  instruction,  that  not  being  among 
the  main  objects  of  its  organization.  It  may  therefore 
very  well  leave  the  great  bulk  of  such  instruction  to  be 
given  by  the  family  and  the  church,  the  two  divine  in- 

'  See  case  of  Foster  North  v.  Board  of  Trustees,  University  of 
Illinois,  presently  to  be  cited. 


The  Principle  for  zvhich  we  Contend.      265 

stitutions  appointed  especially  for  that  work.  The 
work  will  be  better  done  by  an  organ  specialized  for 
that  purpose  than  by  one  that  had  been  specialized  for 
another  purpose. 

Decisions  of  the  Courts  on  Religion  in  the  Pub- 
lic Schools. — The  Board  of  Education  of  the  city  of 
Cincinnati,  Ohio,  on  the  ist  day  of  November,  1869, 
adopted  the  following  resolutions,  viz.  : 

''Resolved,  That  religious  instruction  and  the  reading 
of  religious  books,  including  the  Holy  Bible,  are  pro- 
hibited in  the  Common  Schools  of  Cincinnati,  it  being 
the  true  object  and  intent  of  this  rule  to  allow  the  chil- 
dren of  the  parents  of  all  sects  and  opinions  in  matters 
of  faith  and  worship,  to  enjoy  alike  the  benefit  of  the 
Common-School  fund. 

' '  Resolved,  That  so  much  of  the  regulations  on  the 
course  of  study  and  text-books  in  the  Intermediate  and 
District  Schools  (p.  213,  Annual  Report)  as  reads  as 
follows  :  '  The  opening  exercises  in  every  department 
shall  commence  by  reading  a  portion  of  the  Bible  by  or 
under  the  direction  of  the  teacher,  and  appropriate 
singing  by  the  pupils,'  be  repealed." 

John  D.  Minor  and  others  brought  action  before  the 
Superior  Court  of  Cincinnati,  by  petition  for  an  order 
to  restrain  the  Board  of  Education  from  carrying  out 
the  above  resolutions. '  The  parties  were  heard  by  the 
Court  in  general  term,  November  30,  1869 ;  W.  M. 
Ramsc}',  George  R.  Sage,  and  Rufus  King  appearing 
for  the  plaintiffs,  and  Judges  F.  B,  Stallo,  George 
Hoadly,  and   Stanley   Matthews   for    the   defendants ; 

'  The  statement  aud  history  of  the  case,  the  arguments  of 
counsel  on  both  sides,  and  the  opinions  of  the  justices  have 
been  published  in  full  in  The  Bible  in  the  Public  Schools, 
Cincinnati,  Robert  Clarke  &  Co. 


266  Legal  Decisions. 

Judges  Storer,  Taft,  and  Hagans  on  the  bench.  The 
cause  was  argued  with  great  ability  and  almost  ex- 
haustively on  both  sides. 

The  Court  decided  that  "  The  injunction  must  be  per- 
petual," Taft  dissenting. 

Judge  Hagans  in  his  opinion,  referring  to  the  incorpo- 
ration of  Aj'ticle  III  Ordinaiice  of  lySy^  with  the  Consti- 
tution of  Ohio,  says  :  "  It  is  admitted  that  the  common 
schools  of  Ohio  are  in  operation  under  the  present  Con- 
stitution, adopted  in  1851.  The  last  sentence  of  the 
seventh  section  of  the  Bill  of  Rights  declares  : '  Religion, 
morality,  and  knowledge,  however,  being  essential  to 
good  government,  it  shall  be  the  duty  of  the  General 
Assembly  to  pass  suitable  laws  to  protect  every  religious 
denomination  in  the  peaceable  enjoyment  of  its  own 
form  of  public  worship,  and  to  encourage  schools  and  the 
means  of  instruction.'  There  is  a  vast  difference,  how- 
ever, between  omitting  or  not  rcqtiiring,  and  the  p)V- 
hibition  of  a  thing.  It  could  not  be  claimed  that  if  the 
Legislature  had  omitted  to  pass  suitable  laws  to  protect 
religious  worship  that  it  would  be  competent  for  the 
City  Council  to  enact  an  ordinance  to  prohibit  the 
police  from  doing  it.  This  last  clause  provides  two 
modes  of  reaching  the  declared  end  : 

"  I  St.  To  protect  every  religious  denomination  in  the 
peaceable  enjoyment  of  its  own  mode  of  public  wor- 
ship. .  .  .  There  shall  be  no  respect  to  the  con- 
sciences or  opinions  of  nullifidians  or  other  sects  of 
belief,  by  law,  nor  shall  any  rights  of  conscience  they 
have  be  allowed  as  against  the  'peaceable  enjoyment 
of  their  own  mode  of  public  worship '  by  '  every  re- 
religious  denomination,'  and  the  reason  is  because  're- 
ligion, morality,  and  knowledge  '  are  essential  to  good 
government. 


Legal  Decisions.  267 

"  As  another,  and  the  last  mode,  which  the  Constitu- 
tion enjoins  on  the  Legislature  to  provide  for  reaching 
the  desired  end,  it  enacts,  *  And  ' — mark  the  copula- 
tive conjunction — '  to  encourage  schools  and  the  means 
of  instruction.' 

"  Both  the  State  and  religion  grow  out  of  the  same 
element  of  the  human  soul,  and  they  cannot  therefore 
be  separated  or  treated  as  one  independent  of  the  other. 
Hence,  we  shall  find  that  religion  of  some  sort  was 
always  a  necessary  adjunct  of  the  State,  furnishing 
both  bonds  and  sanctions  as  pledges  of  its  safety  and 
perpetuity.  And  just  in  proportion  as  these  bonds  and 
sanctions  were  weak,  growing  out  of  the  relative  purity 
of  the  religion  of  the  people,  more  or  less  force  was 
necessary  for  government.  But  there  never  was  a  State 
that  existed  long  without  the  bonds  and  sanction  of 
some  religion.  The  mistake  of  most  governments  has 
been  that  the  State  has  allied  itself  with  religion,  has 
erected  establishments  with  a  view  of  producing  uni- 
formity of  faith  ;  —  an  alliance  which  has  been  hurtful 
to  both  parties  to  it.  But  while  the  State  and  religion 
are  thus  inseparably  connected  with  each  other  in  their 
origin,  and  necessary  to  each  other's  existence  and  per- 
petuity, their  objects,  spheres,  means,  and  ends  are 
widely  different. 

"  Tenth.  If  we  should  in  any  sense  worship  science, 
or  art,  or  the  collective  wisdom  of  all  ages,  or  the  souls 
of  our  ancestors  and  of  posterity,  like  Comte,  or  intel- 
lect like  Buckle,  or  virtue  like  Bentham,  or  any  other 
divinity,  and  make  that  worship  the  manifestation  of 
our  religious  convictions,  these  resolutions  would  pro- 
hibit instruction  therein,  and  emasculate  the  schools ; 
besides  doing  violence  to  some  consciences. 

' '  It  appears  from  a  careful  survey  of  the  character 


268  Legal  Decisions. 


and  spirit  of  the  Constitutional  provisions  we  have 
been  examining,  and  of  the  legislation  in  pursuance 
thereof,  that  it  must  be  true  for  the  purposes  of  the 
State  that  Christianity,  not  in  the  sense  of  ecclesiasti- 
cism,  is  the  prevailing  religion  in  the  State.  .  .  . 
The  framers  of  the  Constitution  felt  that  the  moral 
sense  must  necessarily  be  regulated  and  controlled  by 
the  religious  belief ;  and  that  whatever  was  opposed  to 
religious  belief,  estimated  by  a  Christian  standard,  and 
taking  into  consideration  the  welfare  of  the  State,  would 
be  in  the  highest  degree  opposed  to  the  general  public 
sense,  and  have  a  direct  tendency  to  undermine  the 
moral  support  of  the  laws  and  corrupt  the  community. 
.  .  .  It  is  not  claimed  anywhere  that  the  Holy 
Bible  does  not  impress  on  the  children  of  the  common 
schools  the  principles  and  duties  of  morality  and  justice 
and  a  sacred  regard  for  truth,  love  of  country,  human- 
ity, universal  benevolence,  sobriety,  industry,  chastity, 
moderation,  temperance,  and  all  other  virtues,  which 
are  the  ornaments  of  human  society.  .  .  .  Nor 
is  it  claimed  seriously  that  the  Bible  is  adverse  in  any 
translation  to  any  of  these  virtues  as  proper  to  be  in- 
culcated. On  the  contrary,  its  sublime  morality  fur- 
nishes those  teachings  best  fitted  to  develop  the  morals 
and  promote  the  virtues  that  strengthen  and  adorn  both 
social  and  public  life.  In  any  view  we  can  take  of 
these  resolutions,  in  this  case,  they  are  unconstitutional 
and  void." 

Upon  the  plea  made  by  the  counsel  for  the  defence 
that  the  Bible  containing  the  New  Testament  was  to 
the  Jew,  and  King  James's  version  read  without  note  or 
comment  was  to  the  Roman  Catholic,  a  sectarian  book, 
and  that  its  use  in  the  public  schools  was  a  viola- 
tion  of  the   Constitution   which   provides   that    "  No 


Legal  Decisions.  269 

preference  shall  be  given  by  law  to  any  religious  so- 
ciety. ' '  and  that ' '  Xo  religious  or  other  sect  or  sects  shall 
ever  have  any  exclusive  right  to,  or  control  of,  any  part 
of  the  school  funds  of  this  State,"  Judge  Storer  in  his 
opinion  said  :  "  The  whole  argument  that  seems  to  us 
reaches  the  real  question  before  us  is  predicated  upon 
the  supposition  that  the  Bible  is  a  volume  whose  teach- 
ings lead  to  sectarianism,  and  which  ought  not  there- 
fore to  remain  in  the  schools.  We  do  not  admit  the 
assertion,  either  in  whole  or  in  part.  WTiat  we  under- 
stand by  sectarianism  is  the  work  of  man,  not  of  the 
Almightj-.  .  .  .  We  mar\'el  not  that  the  admix- 
tures and  devices  of  men  have  obscured  revelation 
when  scarcely  a  week  passes  by  without  the  annuncia- 
tion of  some  new  annotation  or  analysis  or  the  defence 
of  some  peculiar  dogma.  All  these  we  admit  tend  to 
the  same  result,  which  is  necessarily  a  devotion  to  a 
sect.  But  we  cannot  admit  that  the  Bible  necessarily 
induces  any  such  consequences.  If  it  is  candidh'  ex- 
amined, studied  without  preconceived  prejudice,  its 
truths  admitted  to  the  test  of  enlightened  conscience, 
we  doubt  not  the  answer  always  will  be,  as  it  ever  has 
been,  the  acknowledgment  of  its  sacred  character  and 
a  veneration  for  its  truthfulness.  .  .  .  The  Cath- 
olic does  not  deny  the  inspiration  of  the  Scriptures,  but 
does  not  admit  the  accuracy  of  what  is  called  King 
James's  version.  Yet,  with  comparatively  few  excep- 
tions, the  omission  of  the  Apocr^-phal  Books  and  the 
rendering  of  some  peculiar  passages,  we  do  not  sup- 
pose there  is  anj-  essential  difference  between  the 
versions.  .  .  .  It  is  urged,  however,  that  the  con- 
science of  the  Catholic  parent  cannot  permit  the 
ordinary-  version  to  be  read  as  an  exercise,  as  no  reli- 
gious teaching  is  permitted  by  his  Church  unless  it  is 


2  JO  Legal  Decisions. 

directed  by  the  clergy  or  authorized  by  the  Church  it- 
self, and  it  is  therefore  offensive  to  the  moral  sense  of 
those  who  are  compelled  to  listen  when  any  portion  of 
the  Bible  is  read  ;  but  the  rule  has  long  since  been 
abolished  requiring  children  to  be  present,  or  to  read 
from  the  version  now  in  use,  if  it  should  be  the  ex- 
pressed wish   of  the   parents    first    communicated   to 
the  teachers.     .     .     .     But  is  it  consistent  with   this 
claim  of  counsel  that,  even  if  the  Bible  should  be  pro- 
hibited. Catholic  children  would  not  attend  the  common 
schools  unless  subject  to  the  teachings  of  their  spiritual 
guides.     The  schools  have  been  denominated  godless, 
while  the  Scriptures  are  yet  read  as  a  daily  exercise. 
What  must  they  become,  and  what  will  they  be  termed, 
when  the  Scriptures  are  forbidden  ?     What  appears  to  us 
to  underlie  this  view  of  the  case  is  the  alleged  injustice 
that  Catholic  parents,  in  common  with  other  property- 
holders,  should  be  taxed  for  the  support  of  schools  that 
are  independent  of  the  control  of  the  church,  and  con- 
sequently opposed  to  its  whole  economy.     This  has 
been  pressed  in  argument,  though  no  one  of  the  coun- 
sel for  the  plaintiffs  or  defendants  have  intimated  there 
should  be  a  division  of  the  school  fund.     With  the  jus- 
tice or  injustice,  therefore,  of  the  mode  of  taxation  we 
have  nothing  to  do  in  deciding  the  questions  submitted 
to  us.     If  the  point  should  ever  arise,  we  trust  we  shall 
attentively  consider  all  the  objections  that  may  be  raised 
to  the  present  organization  of  the  schools  ;  but  it  fur- 
nishes no  ground  of  argument  against  the  reading  of 
the  Bible  that  the  taxes  for  the  support  of  the  schools 
are  not  equally  assessed  or  properly  distributed.     .    .     . 
If  then,   '  no  religious  test,'    to  use  the  language    of 
the  Bill  of  Rights,  is  required  of  teacher  or  scholar,  if 
no  act  of  worship  in  a  sectarian  sense  is  performed,  if 


Legal  Decisions.  2  7 1 

no  sectarian  or  denominational  teaching  is  introduced, 
and  e\en  the  possibiHty  of  either  is  prevented  by  the 
resolution  long  since  promulgated,  that  those  who  de- 
sire may  be  exempted  from  the  general  rule,  we  cannot 
see  how  the  defendants  can  justify  the  exclusion  from 
the  schools  of  what  has  been  permitted  there  for  nearly 
half  a  century  wdthout  rebuke.  .  .  .  We  are  satis- 
fied, .  .  .  that  the  resolutions  prohibiting  the  Bible 
and  all  religious  instruction  are  ultra  vires,  and  there- 
fore void.  .  .  .  While  we  hold  that  every  form  of 
religious  worship  is  to  be  alike  protected  by  law,  and 
the  conscience  of  every  man  cannot  be  questioned, 
while  the  broad  shield  of  the  Constitution  is  over  all 
citizens  without  distinction  of  race  or  sect,  we  cannot 
ignore  the  right  of  the  petitioners  for  the  relief  they 
have  sought ;  nor  can  we  with  our  views  of  legal  duty 
sustain  the  action  of  the  defendants. 

"  A  majority  of  the  court  are  of  this  opinion,  and  a 
perpetual  injunction  will  therefore  be  decreed,  as  prayed 
for  in  the  petition."  ' 

'  This  decisiou  was  reversed  by  the  Supreme  Court  of  Ohio 
upon  the  ground  that  the  mandate  of  the  Constitution  (quoted 
above  by  Judge  Hagans)  applied  to  the  Legislature  alone,  and 
that  the  Legislature  had  taken  no  action  in  the  matter  further 
than  to  establish  a  common-school  system  and  to  commit  the 
management  and  control  of  it  exclusively  to  Directors,  Trus- 
tees, or  Boards  of  Education. 

The  Court  said,  inter  al.  :  "It  is  claimed  in  behalf  of  the  de- 
fendants in  error  (i)  that  these  provisions  of  the  Constitution 
require  and  enjoin  religious  instructions,  or  the  teaching  of  re- 
ligious doctrines,  in  the  public  schools,  irrespective  of  the  wishes 
of  the  people  concerned  therein  ;  and  (2)  that  this  requirement 
and  injunction  rests,  not  upon  the  legislature  alone,  but,  in  the 
absence  of  legislation  for  that  purpose,  is  a  law  of  the  State 
propria  rigore,  binding  upon  courts  and  people. 

"  If  it  is  not  conceded,  it  must  be  conceded  that  the  legislature 


272  Legal  Decisions. 


In  the  case  of  Weiss  ct  al.  v.  District  Board  of  School 
District  No.  8,  of  the  City  of  Edgerton,  the  Superior 
Court  of  Wisconsin,  March  18,  1890,  gave  a  decision, 
which  was  unanimous,  and  of  which  the  following  is 
the  authorized  summar}-,  viz.: 

"  I.  In  a  petition  for  a  writ  of  mandamus  to  compel 
the   discontinuance  of  Bible  reading  in  the  common 

have  never  passed  any  law  enjoining  or  requiring  religious  in- 
structions in  the  public  schools,  or  giving  the  courts  power  in 
any  manner,  or  to  any  extent,  to  direct  or  determine  the  par- 
ticular branches  of  learning  to  be  taught  therein,  or  to  enforce 
instructions  in  any  particular  branch  or  branches.     .     .     . 

"  There  is  a  total  absence,  therefore,  of  any  legislation  looking 
to  the  enforcement  of  religious  instruction  in  the  reading  of 
religious  books  in  the  public  schools  ;  and  we  are  brought  back 
to  the  question,  What  is  the  true  meaning  and  effect  of  these 
Constitutional  provisions  on  this  subject?  Do  they  enjoin  re- 
ligious instructions  in  the  schools,  and  does  this  injunction 
bind  the  courts,  in  the  absence  of  legislation  ?  We  are  unani- 
mously of  the  opinion  that  both  of  these  questions  must  be 
answered  in  the  negative.     .     .     . 

"  Equally  plain  is  it  that  if  the  supposed  injunction  to  provide 
for  religious  instructions  is  to  be  found  in  the  clause  of  the 
Constitution  in  question,  it  is  one  that  rests  exclusively  upon 
the  legislature.  In  both  sections  the  duty  is  expressly  imposed 
on  '  the  general  assembly.'  The  injunction  is  to  '  pass  suita- 
ble laws.'  Until  these  'laws'  are  passed  it  is  quite  clear  to 
us  that  the  courts  have  no  power  to  interpose.  The  courts  can 
only  execute  the  laws  when  passed.  They  cannot  compel  the 
general  assembly  to  pass  them."  23  Ohio,  N.  vS.,  211.  Dec, 
1872. 

The  question  still  remains  whether,  if  the  Legislature  had 
passed  laws  enjoining  or  authorizing  ixwy  form  of  religious  in- 
struction or  exercise  in  the  public  schools,  this  Court  would  hold 
those  laws  to  be  constitutional.  From  the  tenor  of  a  disquisi- 
tion at  the  conclusion  of  the  decision  we  infer  that  it  would  not 
do  so. 


Legal  Decisions.  273 

schools,  averments  that  petitioners  are  taxed  for  the 
support  of  the  schools  and  are  equally  entitled  to  the 
benefit  thereof,  and  that  the  reading  of  the  Bible  therein 
is  contrary  to  the  rights  of  conscience,  and  is  sectarian 
instruction,  such  as  is  prohibited  by  Constitution,  Wis- 
consin, Art.  ID,  S.  3,  are  sufl&ciently  broad  to  cover 
every  valid  objection  that  may  be  made  to  such  read- 
ings. 

"  2.  Averments,  in  answer  to  such  petition,  that  the 
reading  of  the  Bible  in  the  schools  is  not  sectarian  in- 
struction, and  that  there  is  no  material  difference  be- 
tween the  King  James  version  used  in  the  schools  and 
the  Douay  version,  are  not  admitted  by  demurrer  ;  the 
former  being  a  conclusion  of  law,  and  the  latter  not 
well  pleaded  because  against  common  knowledge. 

"  3.  The  'sectarian  instruction,'  prohibited  in  the  com- 
mon schools  by  Constitution,  Wisconsin,  Art.  10,  S.  3, 
is  instruction  in  the  doctrines  held  by  one  or  other  of 
the  various  religious  sects  and  not  by  the  rest ;  and 
hence  the  reading  of  the  Bible  in  such  schools  comes 
within  the  prohibition,  since  each  sect,  with  few  ex- 
ceptions, bases  its  peculiar  doctrines  upon  some  portion 
of  the  Bible,  the  reading  of  which  tends  to  inculcate 
those  doctrines. 

"4.  The  practice  of  reading  the  Bible  in  such  schools 
can  receive  no  sanction  from  the  fact  that  pupils  are  not 
compelled  to  remain  in  the  school  while  it  is  being 
read,  for  the  withdrawal  of  a  portion  of  them  at  such 
time  would  tend  to  destroy  the  equality  and  uniformity 
of  treatment  of  the  pupils,  sought  to  be  established  and 
protected  by  the  Constitution. 

"5.  The  reading  of  the  Bible  is  an  act  of  worship, 
as  that  term  is  used  in  the  Constitution,  and  hence 
the  tax-payers  in  any  district  who  are  compelled  to 


2  74  Legal  Decisions. 


contribute  to  the  erection  and  support  of  common 
schools,  have  the  right  to  object  to  the  reading  of 
the  Bible  therein,  under  Constitution,  Wisconsin,  Art. 
I.,  S.  i8,  cl.  2,  declaring  that  "  No  man  shall  be  com- 
pelled ...    to  erect  or  support  any  place  of  worship. ' ' 

"6.  As  the  reading  the  Bible  at  stated  times  in  a  com- 
mon school  is  religious  instruction,  the  money  drawn 
from  the  State  treasury  for  the  support  of  such  school 
is  "  for  the  benefit  of  a  religious  seminary  "  within  the 
meaning  of  Constitution,  "Wisconsin,  Art.  i.,  S.  i8,  cl. 
4,  prohibiting  such  an  appropriation  of  the  funds  of  the 
State." 

Lyon,  J.,  in  giving  his  opinion  said  : 

"II.  In  considering  whether  such  reading  of  the 
Bible  is  sectarian  instruction  the  book  will  be  regarded 
as  a  whole,  because  the  whole  Bible  without  exception 
has  been  designated  as  a  text-book  for  use  in  the 
Edgerton  schools. 

"III.  The  courts  will  take  j  udicial  notice  of  the  con- 
tents of  the  Bible,  that  the  religious  world  is  divided  into 
numerous  sects,  and  the  general  doctrines  maintained 
by  each  sect.  .  .  .  Thus  they  will  take  cognizance 
without  averment  of  the  facts  that  there  are  numerous 
religious  sects  called  'Christians,'  respectively  main- 
taining different  and  conflicting  doctrines  ;  that  some 
of  these  believe  the  doctrine  of  predestination,  while 
others  do  not  ;  some,  the  doctrine  of  eternal  punish- 
ment of  the  wicked,  while  others  repudiate  it ;  some, 
the  doctrines  of  the  apostolic  succession  and  the  au- 
thority of  the  priesthood,  while  others  reject  both  ; 
some,  that  the  holy  Scriptures  are  the  only  sufhcient 
rule  of  faith  and  practice,  while  others  believe  that  the 
only  safe  guide  to  human  thought,  opinion,  and  action 
is  the  illuminating  power  of  the  Divine  vSpirit  upon  the 


Legal  Decisions.  275 

humble  and  devout  heart ;  some,  in  the  necessity  and 
efficac}-  of  the  sacraments  of  the  church,  while  others 
reject  them  entirely  ;  and  some,  in  the  literal  truth  of 
the  Scriptures,  while  others  believe  them  to  be  allegori- 
cal, teaching  spiritual  truth  alone,  or  chiefly' . 

"  V.  .  .  .  The  question  therefore  seems  narrowed 
down  to  this  :  Is  the  reading  of  the  Bible  in  the 
schools — not  merely  selected  passages  therefrom,  but 
the  whole  of  it — sectarian  instruction  of  the  pupils? 
In  view  of  the  fact  already  mentioned,  that  the  Bible 
contains  numerous  doctrinal  passages  upon  some  of 
which  the  peculiar  creed  of  almost  every  religious  sect 
is  based,  and  that  such  passages  may  reasonably  be 
understood  to  inculcate  the  doctrines  predicated  upon 
them,  an  affirmative  answer  to  the  question  seems  un- 
avoidable. Any  pupil  of  ordinary  intelligence  who 
listens  to  the  reading  of  the  doctrinal  portions  of  the 
Bible  will  be,  more  or  less,  instructed  thereby  in  the 
doctrines  of  the  divinity  of  Jesus  Christ,  the  eternal 
punishment  of  the  wicked,  the  authority  of  the  priest- 
hood, the  binding  force  and  efficacy  of  the  sacraments, 
and  many  other  conflicting  sectarian  doctrines.     .      . 

"  It  should  be  observed,  in  this  connection,  that  the 
above  views  do  not,  as  counsel  seemed  to  think  they 
may,  banish  from  the  district  .schools  such  text-books 
as  are  founded  upon  the  fundamental  teachings  of  the 
Bible,  or  which  contain  extracts  therefrom.  Such 
teachings  and  extracts  pervade  and  ornament  our  sec- 
ular literature,  and  are  important  elements  in  its  value 
and  usefulness.  Such  text-books  are  in  the  schools 
for  secular  instruction,  and  rightl}'  so  ;  and  the  Consti- 
tutional prohibition  of  .sectarian  instruction  does  not 
include  them,  even  though  they  may  contain  passages 
from  which  some  inference  of  sectarian  doctrine  micrht 


2  76  Legal  Decisions. 

possibly  be  drawn.  Furthermore,  there  is  much  in  the 
Bible  which  cannot  justl}'  be  characterized  as  sectarian. 
There  can  be  no  valid  objection  to  the  use  of  such  mat- 
ter in  the  secular  instruction  of  the  pupils.  Much  of 
it  has  great  historical  and  literar}'  value,  which  may 
be  thus  utilized  without  violating  the  Constitutional 
prohibition.  It  may  also  be  used  to  inculcate  good 
morals  ;  that  is,  our  duty  to  each  other,  which  may 
and  ought  to  be  inculcated  by  the  district  schools. 
No  more  complete  code  of  morals  exists  than  is 
contained  in  the  New  Testament,  which  re-affirms 
and  emphasizes  the  obligations  laid  down  in  the 
ten  commandments.  Concerning  the  fundamental 
principles  of  moral  ethics  the  religious  sects  do  not 
disagree.     .     .    . 

"  XI.  The  drift  of  some  remarks  in  the  argument  of 
counsel  for  the  respondent,  and  perhaps  also  in  the 
opinion  of  Judge  Bennett,  is  that  the  exclusion  of 
Bible  reading  from  the  district  schools  is  derogatory  to 
the  value  of  the  holy  Scriptures,  a  blow  to  their  influ- 
ence upon  the  conduct  and  consciences  of  men,  and 
disastrous  to  the  cause  of  religion.  We  most  emphati- 
cally reject  these  views.  The  priceless  truths  of  the 
Bible  are  best  taught  to  our  3'outh  in  the  church,  the 
Sabbath  and  parochial  schools,  the  social  religious 
meetings,  and  above  all  by  parents  in  the  home  circle. 
There,  these  truths  may  be  explained  and  enforced, 
the  spiritual  welfare  of  the  child  guarded  and  pro- 
tected, and  his  spiritual  nature  directed  and  cultivated 
in  accordance  with  the  dictates  of  the  parental  con- 
science. The  Constitution  does  not  interfere  with 
such  teaching  and  culture.  It  only  banishes  theological 
polemics  from  the  schools.  It  does  this,  not  because 
of  any  hostility  to  religion,  but  because  the  people  who 


Legal  Decisions.  277 

adopted  it  believed  that  the  public  good  would  thereby 
be  promoted,  and  they  so  declared  in  the  preamble. 
Religion  teaches  obedience  to  law,  and  flourishes  best 
where  good  government  prevails.  The  Constitutional 
prohibition  was  adopted  in  the  interests  of  good  govern- 
ment, and  it  argues  but  little  faith  in  the  vitality  and 
power  of  religion  to  predict  disaster  to  its  progress 
because  a  Constitutional  provision,  enacted  for  such  a 
purpose,  is  faithfully  executed." 

Orton,  J.,  said  :  "As  the  State  can  have  nothing  to 
do  with  religion  except  to  protect  every  one  in  the  en- 
joyment of  his  own,  so  the  common  schools  can  have 
nothing  to  do  with  religion  in  an}'  respect  whatever. 
The}'  are  as  completely  secular  as  anj-  other  institutions 
of  the  State,  in  which  all  the  people  alike  have  equal 
rights  and  privileges.  The  people  cannot  be  taxed  for 
religion  in  schools  more  than  anywhere  else. 
The  clause  '  No  sectarian  instruction  shall  be  allowed 
therein,'  was  inserted  ex  indiistria  to  exclude  every- 
thing pertaining  to  religion.  They  are  called  by  those 
who  wish  to  have  not  onl}-  religion,  but  their  own  reli- 
gion taught  therein,  '  Godless  schools.'  They  are  God- 
less and  the  educational  department  of  the  government 
is  Godless,  in  the  same  sense  that  executive,  legisla- 
tive, and  administrative  departments  are  Godless.  So 
long  as  our  Constitution  remains  as  it  is,  no  one 
religion  can  be  taught  in  our  common  schools. 
There  is  no  such  source  and  cause  of  strife,  quar- 
rels, fights,  malignant  oppositions,  persecutions,  and 
war,  and  all  evils  in  the  State,  as  religion.  Let  it  once 
enter  into  our  civil  afiairs,  our  government  would  soon 
be  destroj-ed.  Let  it  once  enter  into  our  common 
schools,  they  would  be  destro5'ed.  Those  who  made 
our  Constitution  saw  this,  and  used  the  most  apt  and 


278  Legal  Decisions. 


comprehensive  language  in  it  to  prevent  such  a  catas- 
trophy."  ' 

The  Constitution  of  Wisconsin  might  very  well  have 
prohibited/'<:?;'//-sY?;/  instruction  also  in  the  public  schools, 
for  partisanship  is  as  prominent  a  feature  of  our  social 
life  as  sectarianism.  The  partisan  publications,  daily 
and  weekl}^  read  by  the  people  of  that  State,  it  is  safe 
to  say,  outnumber  the  sectarian  publications  in  the  pro- 
portion of  a  hundred  to  one  ;  and  while  the  religious 
discourses  outnumber  the  political  addresses  delivered, 
yet  it  cannot  be  denied  that  an  immensely  large  pro- 
portion of  the  former  dwell  upon  themes  on  which  all 
Christians  are  agreed,  and  are  not  sectarian,  while 
ever}^  one  of  the  latter  is  intensely  partisan.  Such  a 
prohibition  no  doubt  would  have  been  placed  in  the 
Constitution  had  the  convention  that  framed  it  been 
perfectly  free  from  a  very  prevalent  bias.  The  words 
of  Justice  Orton  in  this  decision,  "There  is  no  such 
source  and  cause  of  strife,  quarrels,  fights,  malignant 
oppositions,  persecution  and  war,  and  all  evils  in  the 
State,  as  religion,"  reveal  an  excessive  fear  of  the 
Christian  religion  which  can  hardly  be  attributed  to 
anything  else  than  a  bias  in  favor  of  an  ill-digested  and 
tacitly  assumed  anti-Christian  theory  of  our  civil  insti- 
tutions,— a  bias  which  seems  to  avail  itself  of  every 
opportunity  to  establish  that  theory.  Supposing  that 
the  Constitution  of  Wisconsin  had  prohibited  partisan 
as  well  as  sectarian  instruction  ;  would  this  court  have 
adjudged  the  Constitution  of  the  United  States  to  be  a 
partisan  document  ?  Would  it  have  given  as  the  ground 
of  this  opinion  the  fact  that  there  are  now  over  one 
hundred  volumes  of  decisions  upon  conflicting  claims, 
based  upon  different    views   of   the  meaning  of   that 

'  The  N.  W.  Reporter,  vol.  44,  ])p.,  967-982. 


Legal  Decisions.  2  79 

clocuraeut ;  that  almost  from  the  beginning  two  great 
political  parties  have  been  in  contention  as  to  the  con- 
struction to  be  put  upon  it  ;  that  every  Congress  has 
debated  its  meaning  ;  and  that  a  great  war  grew^  out  of 
conflicting  interpretations  of  it  ? 

And,  further,  had  the  Constitution  of  the  United 
States  been  written  in  a  dead  language  ;  were  there 
now  in  common  use  two  versions  of  it  ;  both  derived 
from  a  received  text,  the  one  a  translation  into  the  ver- 
nacular, the  other  a  translation  into  another  dead  lan- 
guage and  re-translated  into  the  vernacular  ;  the  two 
differing  only  as  such  translations  might  be  expected  to 
differ  ;  and  did  the  political  leaders  of  a  small  minority, 
sa}'  one  tenth  of  the  population,  lay  it  down  as  one  of 
the  doctrines  of  their  party  that  the  common  people 
were  incompetent  to  form  any  correct  opinions  of  the 
meaning  of  the  Constitution,  and  therefore  were  not  to 
read  it  or  hear  it  read,  but  were  to  accept  implicitly  the 
interpretations  of  it  promulgated  by  the  Supreme  Court 
of  the  United  States,  and  to  receive  those  interpreta- 
tions onl)'  from  persons  who  had  been  regularly  ad- 
mitted to  the  Bar  ;  would  this  court  hold  that  both  of 
these  versions  were  partisan  documents  ;  that  the  read- 
ing of  either  of  them  in  the  public  schools  even  with- 
out note  or  comment  would  be  partisan  instruction,  and 
that  such  reading  was  therefore  prohibited  by  the  Con- 
stitution of  the  State  ? 

An}-  one  will  be  able  to  see  that,  by  the  subtle  potencx- 
of  the  definition  of  partisan  instruction  here  given,  the 
partisan  tenet  of  a  small  minority  is  put  in  operation  as 
the  law  of  the  State.  The  tenet  of  the  majorit}-  is  re- 
jected, and  that  majority  is  compelled  to  pay  taxes  for 
the  purpose  of  establishing  the  tenet  of  the  minority  in 
the  administration  of  the  public  schools.     A  decision 


2  So  Legal  Decisions. 

having  such  an  effect  ought  to  be  based  upon  a  defini- 
tion of  partisan  instruction  less  obviously  defective  than 
the  one  here  given.  It  is  little  wonder  that  the  Su- 
preme Court  of  a  neighboring  State  declined  to  recog- 
nize the  validity  of  the  principles  laid  down  in  this 
decision. 

James  H.  Nichols  v.  The  School  Directors,  Appeal 
from  the  Circuit  Court  of  Livingston  County,  Illinois. 
Bill  for  an  injunction  by  complainant  as  a  citizen,  tax- 
payer, and  freeholder  of  the  school  district,  to  restrain 
the  directors  from  allowing  the  school-house  of  that  dis- 
trict to  be  used  by  any  society  or  organization  for  the 
purpose  of  a  religious  meeting-house. 

The  Supreme  Court  of  Illinois,  September,  1879,  said, 
Mr.  Justice  Sheldon  delivering  the  opinion  of  the  court, 
Hon.  N.J.  Pillsbury  (Judge)  presiding: 

"The  grievance  as  set  forth  in  the  bill  is  that  the 
defendants  have  as  such  directors  given  permission  to 
different  church  organizations  to  hold  religious  services 
in  the  school-house  against  the  protest  of  complainant 
and  other  tax-payers  of  the  district ;  that  under  this 
permission  some  of  the  church  organizations  purpose 
holding  stated  meetings  in  the  school-house  ;  that  by 
this  means  complainant  is  compelled  to  aid  in  furnishing 
a  house  of  worship  for  religious  meetings  contrary  to 
the  law  of  the  land  ;  that  he  is  opposed  to  such  use  of 
the  house  by  the  societies,  and  that  such  meetings  are 
about  to  be  held  in  the  same  contrary  to  his  wishes. 

''Statute.  '.  ,  .  and  who  may  grant  the  temporary 
use  of  school-houses,  when  not  occupied  for  schools,  for 
religious  meetings  and  Sunday-schools,  for  evening 
schools  and  for  literary  societies,  and  for  such  other 
meetings  as  the  directors  may  deem  proper.'  ' 
'  Revised  Statutes,  1874,  p.  958,  S.  39. 


L  egal  Decisions.  2  8 1 

"  There  is  clearly  suflEicient  warrant  in  the  statute,  if 
that  be  valid,  for  the  action  of  the  school  directors. 
But  the  statute  is  assailed  as  being  unconstitutional. 
The  clauses  which  are  pointed  out  as  being  supposed 
to  be  violated  bj^  this  statute  are  the  following  only  : 

'  Art.  II.,  S.  3.  No  person  shall  be  required  to  attend 
or  support  any  ministry  or  place  of  worship  against  his 
consent  ;  nor  shall  an}'  preference  be  given  by  law  to 
any  religious  denomination  or  mode  of  worship.' 

"  'Art.  VIII.,  S.  3.  Forbidding  among  other  public 
bodies,  the  General  Assembl)',  or  any  school  district, 
from  ever  making  any  appropriation  or  paying  from 
any  public  fund  whatever,  anything  in  aid  of  any 
church  or  sectarian  purpose,  etc.  ;  and  forbidding  the 
State  or  anj'  public  corporation  from  making  any  grant 
or  donation  of  land,  money,  or  other  personal  property 
to  any  church,  or  for  an}'  sectarian  purpose.' 

"  '  Art.  VIII.,  S.  2.  All  land,  moneys,  or  other  prop- 
erty, donated,  granted,  or  received  for  school,  college, 
seminary  or  university  purposes,  and  the  proceeds 
thereof,  shall  be  faithfully  applied  to  the  objects  for 
which  such  gifts  or  grants  were  made.' 

"  The  thing  contemplated  by  the  Constitutional  pro- 
vision first  above  named,  was  a  prohibition  upon  the 
legislature  to  pass  any  law  by  which  a  person  should 
be  compelled  without  his  consent  to  contribute  to  the 
support  of  any  ministry  or  place  of  worship.  Such  a 
matter  as  the  subject  of  complaint  here,  we  do  not 
regard  as  within  its  purview. 

"  Religion  and  religious  worship  are  not  so  placed 
under  the  ban  of  the  Constitution  that  they  may  not  be 
allowed  to  become  the  recipient  of  any  incidental  bene- 
fit whatever  from  the  public  bodies  or  authorities  of  the 
State.     That    instrument   itself   contains   a   provision 


282  Legal  Decisions. 

authorizing  the  legislature  to  exempt  property  used  for 
religious  purposes  from  taxation  ;  and,  thereby,  the 
same  as  is  complained  of  here,  there  might  be  indirectly 
imposed  upon  the  tax-payer  the  burden  of  increased 
taxation,  and  in  that  manner  the  indirect  supporting 
of  places  of  worship.  In  the  respect  of  the  possibility 
of  enhanced  taxation  therefrom,  this  provision  of  the 
Constitution  itself  is  even  more  obnoxious  to  objection 
than  this  permission  given  by  the  school  directors  to 
hold  religious  meetings  in  the  school-house.  There  is 
no  pretence  that  it  is  in  any  way  in  interference  with 
the  occupation  of  the  building  for  school  purposes. 

"  We  think  the  court  rightly  sustained  the  demurrer 
and  dismissed  the  bill  as  making  no  case  for  an  injunc- 
tion.    The  decree  is  affirmed.'  " 

In  the  case  of  Donahue  v.  Richards  et  a!.,  38  Maine, 
p.  376,  suit  had  been  brought  by  the  father  of  Bridget 
Donahue  against  the  superintending  school  committee 
of  the  town  of  Ellsworth,  Me.,  for  expelling  her  from 
school  for  a  refusal  to  comply  with  the  orders  of  her  in- 
structor to  read  in  the  common  version  of  the  Bible, 
designated  in  the  report  as  the  Protestant  version  ;  such 
reading  being  a  part  of  the  general  course  of  instruction, 
and  this  version  being  directed  to  be  read  in  this  course. 

The  nonsuit  was  confirmed  on  the  ground  that  ' '  In 
no  case  can  a  parent  sustain  an  action  for  any  wrong 
done  to  the  child,  unless  he  has  incurred  some  direct  pe- 
cuniary injury  therefrom,  in  consequence  of  some  loss 
of  service,  or  expenses  necessarily  consequent  there- 
upon.' '  It  was  decided  that  for  injury  to  the  person,  the 
reputation,  or  the  property  of  the  child,  the  suit  must 
1)e  brought  in  her  own  name.  Whereupon  action  was 
brought  by  plaintiff  who  was  fifteen  years  of  age, 
'  93  lUiuois,  61. 


Legal  Decisions.  283 


through  her  father,  as  her  prochein  ami,  against  the 
superintending  school  committee,  to  recover  damages 
for  maliciously,  wrongfully,  and  unjustifiably  expelling 
her  from  one  of  the  town  schools  in  Ellsworth. 

In  this  case,  Donahue,  prochein  ami,  v.  Richards  <?/ a/. 
38  Maine,  379,  Appleton,  J.,  giving  the  decision,  the 
Court  said  : 

"  The  present  suit  is  by  the  minor  for  the  alleged 
wrongful  exclusion  from  school  in  consequence  of  her 
refusal  to  read  one  of  the  books  directed  by  the  defend- 
ants, who  are  the  superintending  school  committee  of 
the  town  of  Ellsworth,  to  be  used  in  the  school  of  which 
she  was  a  member. 

"  The  questions  involved  in  the  decision  of  this  case 
are  their  liabilit}',  when  acting  in  good  faith  in  the  dis- 
charge of  their  duty,  to  an  action  at  the  suit  of  the  in- 
dividual expelled,  even  if  the  exclusion  was  erroneous  ; 
their  powers  as  to  the  selection  of  the  books  to  be  used  ; 
their  legal  right  to  expel  a  scholar  in  case  of  a  refusal 
to  read  in  a  book  by  them  prescribed  ;  the  Constitution- 
ality of  a  regulation  by  which  the  Bible,  or  any  version 
of  it,  is  designated  as  one  of  the  books  to  be  read. 

"  The  defendants  are  public  officers,  discharging  an 
important  public  trust,  and  in  the  exercise  of  this 
authorit}',  necessarily  clothed  to  a  certain  extent  with 
judicial  powers.  In  doing  the  act  of  which  complaint 
is  made,  thej^  were  acting  under  the  obligations  of  offi- 
cial duty  and  the  sanctions  of  an  oath.  The  plaintiff 
claims  that  when  thus  acting,  and  without  malice  or 
intentional  wrong  on  their  part,  they  can  be  held  re- 
sponsible in  damages  for  an  erroneous  decision,  an  error 
in  judgment,  either  as  to  the  facts  or  as  to  the  conse- 
quences rightly  deducible  from  them.  In  fine,  that 
they  should  be  held  liable  if  they  erred  in  judgment 


284  Legal  Decisions. 


in  a  matter  submitted  to  their  determination,  and  upon 
which  they  were  bound  to  act. 

' '  Her  claim  to  be  exempt  from  a  general  regulation  of 
the  school  rests  entirely  on  her  religious  belief,  and  is 
to  the  extent  that  the  choice  of  reading  books  shall  be 
in  entire  subordination  to  her  faith,  and  because  it  is  her 
faith.  .  .  .  The  preference  [of  a  religious  sect]  is 
manifestly  given,  if  in  the  selection  to  be  made  the  de- 
fendants were  bound  to  defer  to  the  doctrines  and 
authority  and  teachings  of  the  sect  of  which  she  is  a 
member.  The  right  of  negation  is,  in  its  operation, 
equivalent  to  that  of  proposing  and  establishing.  The 
right  of  one  sect  to  interdict  or  expurgate  would  place 
all  schools  in  subordination  to  the  sect  interdicting  or 
expurgating.  If  the  claim  is  that  the  sect  of  which 
the  child  is  a  member  has  a  right  to  interdict,  and  that 
any  book  is  to  be  banished  because  under  the  ban  of 
her  church,  then  the  preference  is  practically  given  to 
said  church,  and  the  very  mischief  complained  of  is 
inflicted  on  others.  ...  If  Locke  and  Bacon  and 
Milton  and  Swift  are  to  be  stricken  from  the  list  of 
authors  which  may  be  read  in  the  schools,  because  the 
authorities  of  one  sect  may  have  placed  them  among 
the  list  of  heretical  writers,  whose  work  it  neither  per- 
mits to  be  printed,  nor  sold,  nor  read,  then  the  right  of 
sectarian  interference  in  the  selection  of  books  is  at 
once  yielded,  and  no  books  are  to  be  read  to  which  it 
may  not  assent.  ...  If  one  sect  may  object,  the 
same  right  must  be  granted  to  others.  This  would  give 
the  authorities  of  every  sect  the  right  to  annul  any 
regulation  of  the  constituted  authorities  of  the  State 
as  to  the  course  of  stud}'  and  the  books  to  be  read.  It 
is  placing  the  legislation  of  the  State,  at  once  and  for- 
ever, in  subordination  to  the  decrees  and  the  teachings 


Legal  Decisions.  285 

of  any  and  all  sects  when  their  members  conscientiously 
believe  such  teachings.  It  at  once  surrenders  the  power 
of  the  State  to  a  government  not  emanating  from  the 
people,  nor  recognized  by  the  Constitution, 
and  the  use  of  books  would  be  made  to  depend  not 
upon  the  judgment  of  those  to  whom  the  law  entrusts 
their  selection,  but  upon  that  of  the  authority  of  a 
Church  ;  so  that  each  sect  would  have  precedence,  as 
a  sect,  and  for  that  cause.  .  .  .  The  claim  so  far 
as  it  may  rest  on  conscience  is  a  claim  to  annul  any 
regulation  of  the  State  made  by  its  constituted  authori- 
ties. As  a  right  existing  on  the  part  of  one  child  it  is 
equalh'  a  right  belonging  to  all,  .  .  .  and  thus,  the 
power  of  selection  of  books  is  withdrawn  from  those  to 
whom  the  law  entrusts  it,  and  by  the  right  of  negation 
is  transferred  to  the  scholars.  The  right,  as  claimed, 
undermines  the  power  of  the  State.  It  is  that  the  will 
of  the  majority  shall  bow  to  the  conscience  of  the 
minorit)',  or  of  one.     .     .     ." 

Mr.  Foster  Xorth,  a  student  of  the  Universitj-  of 
Illinois,  after  nearh-  six  years  of  acquiescence  in  the  reg- 
ulation requiring  attendance  upon  chapel  exercises,  ab- 
sented himself  from  those  exercises. 

On  April  17,  1885,  the  Faculty,  after  having  had 
conference  with  Mr.  North  and  having  entered  upon 
its  minutes  that  "He  would  be  expected  to  comply 
with  the  regulations  of  the  University  as  long  as  he 
remains  a  student  therein,"  voted  the  following  order, 
viz.  : 

.  "  Case  of  F.  Xorth  referred  to  Regent.  If  he  claims 
conscientious  scruples  against  attendance  at  chapel,  he 
may  be  excused  ;  if  not,  he  will  be  suspended. ' ' 

On  the  24th  of  April,  Mr.  North  replied  in  writing, 
refusing  the  offer  to  be  excused  on  account  of  the  re- 


286  L  eza  I  Decisions. 

piignance  of  the  chapel  exercises  to  his  religious  con- 
victions, saying  that  he  had  "  no  religious  convictions 
for  the  chapel  exercises  to  be  repugnant  to"  ;  and 
secondly,  he  took  the  ground  that  the  Faculty  had  no 
right  to  make  any  regulation  requiring  students  to  at- 
tend chapel  ;  and  that  the  act  of  formally  expressing 
his  wish  not  to  attend  would  be  a  recognition  of  a  right 
which  he  strenuously  denied.  Whereupon  the  follow- 
ing communication  was  addressed  to  him,  viz.: 

"  Illinois  Industrial  University, 
"  Regent's  Office, 
"Urbana,  111.,  April  30,  1885. 
"  Mr.  Foster  North, 

"  Dear  Sir  : — It  is  in  evidence  before  the  Faculty  of 
this  University  that  during  most  of  the  current  term  you 
have  purposely  absented  yourself  from  the  general  as- 
sembly of  the  students,  required  daily  of  them  by  the 
regulations  of  this  institution.  You  aver  that  you  have 
not  done  this  on  account  of  any  conscientious  objec- 
tions to  any  of  the  exercises  there  held,  religious  or 
other,  but  because  you  deny  the  authority  of  the  Fac- 
ulty to  require  your  attendance  there,  so  long  as  any 
part  of  the  exercises  are  religious  in  form.  You  there- 
fore deny  the  authority  of  the  Faculty  as  now  adminis- 
tered. 

•"  The  Faculty  cannot  accept  your  view  of  the  case  or 
admit  your  propositions  thereupon  ;  nor  can  they  allow 
you  to  nullify  their  regulations.  I  am  therefore  directed 
to  say  to  you  that  you  are  from  this  date  suspended  in- 
definitely from  the  University. 

"S.   H.  Peabody, 

''  Rege?tt. 
"  By  order  of  the  Faculty." 


«      Legal  Decisions.  287 

Mr.  North  appealed  to  the  Board  of  Trustees,  a  ma- 
jority of  whom  sustained  the  action  of  the  Faculty. 
The  Board  asked  the  advice  of  the  Attorney-General 
of  the  State,  Hon.  George  Hunt,  their  legal  adviser, 
who  gave  an  elaborate  opinion  sustaining  the  action 
of  the  Board." 

In  1890  Mr.  North  petitioned  the  Supreme  Court  of 
Illinois  for  a  writ  of  mandamus  against  the  Trustees 
of  the  Universit}' requiring  them  to  reinstate  him  in  the 
University. 

Upon  the  hearing  of  this  petition  the  Court  said,  Mr. 
Justice  Wilkin  delivering  the  opinion  of  the  court  : 

"  .  .  .  It  certainly  will  not  be  insisted  that  the 
rule  requiring  students  to  attend  chapel  exercises  is  un- 
reasonable or  unlawful,  as  applied  to  those  who  are 
willing  to  obe}'  it.  The  legality  of  the  rule  is  ques- 
tioned on  the  sole  ground  that  it  violates  that  clause  of 
Section  3,  Article  II.  of  the  Constitution  of  this  State, 
which  says,  '  No  person  shall  be  required  to  attend  or 
support  any  ministr}'  or  place  of  worship  against  his 
consent.'  It  is  not  pretended  by  the  petitioner  that 
the  exercises  at  chapel  meetings  were  sectarian,  and 
therefore  objectionable  ;  but  the  only  objection  to  those 
exercises  was,  and  is,  that  the}'  were  in  part  religious 
worship,  within  the  meaning  of  the  above-quoted  lan- 
guage of  the  Constitution.  In  the  view  we  take  of  the 
case  that  fact  may  be  conceded.  The  real  question  on 
this  branch  of  the  case  is,  Was  it  a  violation  of  that 
constitutional  provision  for  respondents  to  adopt  the 
rule,  and  require  obedience  thereto  by  those  attending 
the  Universit}^  unless  excused  therefrom  ? 

"  There  is  certainly  nothing  in  this  section  of  our  Con- 

'  Report  of  the  Board  of  Trustees  of  the  University  of  Illi- 
nois to  the  Governor  of  It/ifiois,  iSS6,  pp.  39,  43,  62,  63,  66,  72. 


288  Legal  Decisions. 

stitution  prohibiting  this  and  like  institutions  of  learn- 
ing from  adopting  reasonable  rules  requiring  their 
students  to  attend  chapel  exercises  of  a  religious  nature, 
and  to  use  at  least  moral  suasion  and  all  argumentative 
influences  to  induce  obedience  thereto.  .  .  .  Shall 
a  court  say  such  a  requirement  is,  in  and  of  itself,  a  viola- 
tion of  said  Constitutional  provision,  merely  because 
some  one  or  more  students  attending  the  University  may 
object  to  obeying  it  ?  More  especially  should  this  be 
done  when,  as  is  here  shown  by  the  answer,  the  rules 
expressly  provide  that  for  good  cause  students  may  be 
excused  from  obedience  to  the  regulations.  We  have 
said,  in  construing  this  section  of  the  Constitution, 
*  Religion  and  religious  worship  are  not  so  far  placed 
under  the  ban  of  the  Constitution  that  they  may  not  be 
allowed  to  become  the  recipient  of  any  incidental  bene- 
fit whatever  from  the  public  bodies  or  authorities  of  the 
state'  (Nichols  v.  The  School  Directors,  93  Illinois,  61). 
It  may  be  said  with  greater  reason  that  there  is  nothing 
in  that  instrument  so  far  discountenancing  religious 
worship  that  colleges  and  other  institutions  of  learning 
may  not  lawfully  adopt  all  reasonable  regulations  for 
the  inculcation  of  moral  and  religious  principles  in 
those  attending  them. 

"  We  are  clearly  of  the  opinion  that  the  rule  is  not 
unlawful.  At  most  it  could  only  be  fairly  contended 
that  under  said  clause  of  the  Constitution  one  so  desir- 
ing it  should  for  reasonable  cause  be  excused  from  its 
observance.  The  whole  of  said  Section  3  being  con- 
sidered, it  is  clear  that  it  is  designed  to  protect  the 
citizen  in  the  free  exercise  of  his  religious  opinions, 
and  it  should  be  liberally  construed  to  that  end. 

"  As  we  have  seen,  he  was  requested  to  base  his  ap- 
plication to  be  excused  from  attending  chapel  exercises 


Legal  Decisions.  289 

oil  the  only  reasonable  ground  that  it  could  be  based. 
He  not  only  refused  to  do  that,  but  according  to  the 
allegations  of  the  answer,  which  he  admits,  refused  to 
ask  to  be  excused  on  any  ground.  His  expulsion  was 
the  result  of  his  own  wrong.  Neither  the  respondents 
or  the  Faculty  have  been  guilty  of  a  violation  of  law, 
or  of  doing  any  wrong. 

"  The  authorities  cited  by  counsel  for  the  petitioner 
do  not  militate  against  this  conclusion.  The  case  of 
the  State  ex  rcl.  Weiss  et  al,  v.  District  No.  8,  etc., 
decided  by  the  Supreme  Court  of  Wisconsin,  in  1890, 
(A^.  ]V.  Reporter,  vol.  xliv,  p.  967)  is  much  relied  on  as 
sustaining  the  petitioner's  right  to  the  writ.  The  case 
is  wholly  unlike  this.  The  relators  in  that  case  were 
members  of  the  Roman  Catholic  Church  and  tax-payers 
in  the  school  district.  Their  children  attending  the 
school  were  also  members  of  that  church.  The  com- 
plaint was  that,  Bible  reading  in  the  school  was  ex- 
clusively from  '  King  James's  Version,'  and  therefore 
sectarian  instruction  in  violation  of  Section  3,  Article 
X,  of  the  Constitution  of  that  State,  which  ordains 
that  '  No  sectarian  instruction  shall  be  allowed  in  the 
district  .schools  of  this  State.'  Lyon,  J.,  who  wrote 
the  principal  opinion  in  the  case,  confines  his  discus- 
sion and  decision  to  that  question  onl}-,  and  as  we 
read  the  petition  that  was  the  only  Constitutional 
question  raised  by  it.  In  the  concurring  opinions  filed 
by  Casody  and  Orton,  J.  J.,  there  is  a  discussion  of  the 
questions  as  to  whether  or  not  such  Bible  reading,  as 
alleged  in  the  petition,  was  a  violation  of  the  rights  of 
conscience,  and  amounted  to  compelling  the  relators  to 
aid  in  the  support  of  a  place  of  worship  against  their 
consent,  within  the  prohibition  of  other  sections  of 
that  Constitution. 


290  Fit  I  I  Liberty. 

"  It  is  manifest  all  that  is  said  in  that  case  could  not 
be  approved  by  this  court  consistently  with  our  former 
decisions,  as  is  there  expressly  recognized  ;  but,  if  it 
could,  still  it  would  by  no  means  follow  that  a  peremp- 
tory writ  should  be  issued  in  this  case.  None  of  the 
questions  there  decided  are  necessarily  involved  here. 

' '  We  are  clearly  of  the  opinion  that  there  is  no  suffi- 
cient ground  here  shown  to  authorize  the  ordering  of 
the  peremptory  writ  of  mandamus,  and  it  is  therefore 
denied."  ' 


CHAPTER  VIII. 

FULIv  LIBEIRTY, 

The;  government  should  allow  full  liberty  of  belief 
and  unbelief,  and  the  largest  liberty  of  action  to  the 
believer  and  unbeliever  alike,  which  is  consistent  with 
justice  and  the  good  order  of  society. 

It  will  happen  that  Christian  considerations  will 
enter  into  some  of  the  legislation  of  the  State,  and  that 
certain  Christian  observances  will  be  established  by 
law, — an  inevitable  result  where  the  people  are  almost 
wholly  Christian,  as  we  have  shown,  but  in  all  these 
cases  the  State  should  show  its  Christian  character, 
first  of  all,  in  not  usurping  the  place  of  God,  and 
assuming  the  right  to  coerce  the  consciences  of  men. 
It  should  show  its  confidence  in  the  truth  by  not  desir- 
ing to  employ  against  those  who  deny  the  truth  any 
other  force  than  the  force  of  truth  itself  The  State, 
Christian  though  it  be,  should  not  compel  anj'  man  to 

'  North  :'.  Board  of  Trustees  of  the  University  of  Illinois,  27  N, 
E.  Rep.,  54,  March  1891. 


Ftdl  Liberty.  291 

act  contrar}'  to  his  convictions  ;  nor  should  it  impose 
an}-  coercive  disabihties  upon  anj*  man  for  refusing  so 
to  act.  It  should  not  require  the  Quaker  or  the  atheist 
to  take  an  oath  ;  nor  should  it  exclude  either  from  the 
witness  stand,  or  from  office,  on  account  of  his  refusal 
to  take  an  oath.  It  has  appointed  the  Lord's  day  as  a 
day  of  rest.  It  should  not  require  of  the  unbeliever, 
the  Jew,  or  the  Christian  Sabbatarian,  any  obser\'- 
ance  of  that  da}-  which  would  imply  on  his  part  that 
he  was  obser\-iug  it  as  a  Christian  dut}-,  or  for  the 
Christian  reason  of  the  appointment.  It  should  require 
of  these  citizens  only  that  they  abstain  from  all  acts  on 
that  day  which  would  offend  the  sensibilities  of  Chris- 
tian people,  disturb  them  in  their  worship,  or  disturb 
the  good  order  of  society.  Any  prohibitions  or  penalties 
laid  upon  them  for  the  non-observance  of  the  day  ought 
to  be  based  on  these  reasons,  and  on  these  alone. 
Were  a  man  alone  in  the  depths  of  a  forest,  the  State 
ought  not  to  punish  him  for  felling  trees,  or  hunting, 
or  fishing,  on  the  first  day  of  the  week.  Were  there 
a  company  of  persons  away  by  themselves  in  such  a 
solitude,  and  did  they  choose  to  divert  themselves  on 
that  day  with  the  game  of  base-ball,  or  with  the  music 
of  a  brass  baud,  or  with  a  dramatic  performance,  it  ought 
not  to  punish  them  for  so  doing  ;  but  it  might  prohibit 
all  such  diversions  where  they  would  offend  the  sensi- 
bilities of  Christian  people  or  disturb  them  in  what 
thej'  regard  as  the  proper  use  of  the  day.  This  differ- 
ence in  action  on  the  part  of  the  State  w-ould  imply 
and  would  be  based  upon  a  just  discrimination  in  prin- 
ciple. While  establishing  a  Christian  ordinance,  and 
establishing  it  as  such,  it  would  not  be  requiring  the 
unbeliever  to  observe  it  as  Christian,  or  for  the  Chris- 
tian  reasons,    upon    which    the   obser\'ance   is   based. 


292  Full  Liberty. 

The  old  laws  upon  the  observance  of  Sunday,  which 
are  still  in  force  in  most  of  the  older  States,  go  further 
than  this  ;  but  the  later  jurists,  and  a  few  of  the  States 
in  their  legislation,  and  in  the  decisions  of  their  courts, 
have  adopted  the  principle  of  discrimination  we  have 
been  setting  forth.'  To  this  extent  the  regulations  of 
the  State  ought  to  be  governed  by  a  respect  for  the 
personal  liberty  and  the  feelings  of  the  unbeliever. 


CHAPTER  IX. 

UNTENABI<E  THEORIES. 

The  abstaining  of  the  government  from  the  propa- 
gation of  Christianity,  and  from  the  enforcement  upon 
the  unbeliever  of  the  observance  of  a  legally  estab- 
lished Christian  ordinance,  as  a  religious  duty,  or  for 
the  Christian  reasons  upon  which  the  ordinance  is  based 

'  The  older  States,  in  framing  their  Sunday  laws,  have  fol- 
lowed the  old  English  statute,  which  prohibited  the  doing  or  ex- 
ercising of  any  worldly  labor,  business,  or  work,  on  the  Lord's 
day,  works  of  necessity  and  charity  excepted.  Under  these 
laws  a  great  number  and  variety  of  questions  have  been  brought 
to  the  courts  for  decision,  such  as  the  validity  of  contracts  and 
promissory  notes,  made  on  Sunday  ;  damages  for  injuries  re- 
ceived upon  public  highways,  and  from  public  carriers,  by  acci- 
dent in  travelling  on  Sunday,  or  for  failure  of  a  public  carrier  to 
transport  perishable  freight  on  Sunday.  One  or  two  cases  may 
serve  as  examples  of  the  decisions  rendered  under  this  form  of 
the  statute. 

Michael  Connelly,  in  passing  over  Dover  Street,  Boston,  at 
nine  o'clock  Sunday  night,  Oct.  6,  1872,  walked  off  an  open 
drawbridge,  which  was  not  protected  by  any  guard  or  barrier. 
Upon  suit  for  damages,  the  court  decided  that  "  One  who  works 
by  night,  instead  of  by  day,  and  who  travels  on  Sunday,  for  the 


Untenable   Theories.  293 

does  not  work  a  divestiture  of  all  Christian  character, 
and  does  not  remove  all  Christian  basis  from  its  regu- 
lations. That  such  a  divestiture  has  somehow  been 
made  is  coming  to  be  a  general  impression.  Even 
Christian  jurists,  and  also  courts,  which  cannot  be 
charged  with  any  prejudice  against  Christianity,  have 
made  affirmations  which  seem  to  imply  it.  The  natural 
history  of  this  impression  can  easil}^  be  made  out. 

In  the  first  place,  almost  any  one,  upon  finding  that 
these  two  propositions  must  be  accepted  :  (a)  That  it 
is  not  the  proper  function  of  the  government  to  incul- 
cate, propagate,  or  foster  Christianity  :  (b)  That  full 
liberty  of  conscience  is  to  be  guaranteed  to  the  believer 
and  unbeliever  alike,  and  finding  that  the  regulations 
prescribed  for  the  observance  of  a  Christian  ordinance, 
established  by  law,  are  such  as  not  to  imply  on  the 
part  of  the  unbeliever  observance  as  a  Christian  duty 

purpose  of  seeing  his  master  and  inducing  him  to  change  his 
hours  of  labor  from  night  to  the  day,  in  order  that  he  may 
sleep  better  is  not  travelling  from  necessity  or  charity,  and 
cannot  maintain  an  action,  against  the  town,  for  an  injury  sus- 
tained by  him,  while  so  travelling,  by  reason  of  a  defect  in  the 
highway  which  the  town  is  by  the  law  obliged  to  keep  in 
repair."     Connelly  f.  City  of  Boston,  117  Mass.,  64.    Jan.,  1875. 

"  One  who  travels  on  Sunday,  to  ascertain  whether  a  house 
he  has  hired,  and  into  which  he  intends  to  move  the  next  day, 
has  been  cleaned,  is  not  travelling  from  necessity  or  charitj-, 
and  cannot  maintain  an  action,  for  injury  sustained  at  a  rail- 
road crossing,  through  the  negligence  of  the  servants  of  the 
railroad  corporation."  Smith  v.  Boston  &  Maine  R.  R.,  120 
Mass.,  490.     Sept.,  1876. 

Mr.  Geo.  E.  Harris,  of  the  Washington,  D.  C,  Bar,  has  made 
a  classification  and  a  brief  digest  of  the  decisions  upon  the 
Sunday  laws  in  the  United  States,  filling  an  octavo  volume  of 
over  three  hundred  pages.  Published  by  The  Lawyers  Co-oper- 
ative Pub.  Co.,  Rochester,  N.  Y.,  1892. 


294  Unteitable  Theories. 

or  for  Christian  reason  thereof ;  would  be  led  to  sup- 
pose that  the  government,  if  Christian  at  all,  is  so  only 
in  name.  Hence  we  think  it  is  that  w'e  find  in  the 
latest  writings  of  some  jurists  and  in  the  recent  deci- 
sions of  some  of  the  courts,  affirmations  that  our  civil 
government  is  Christian,  but  connected  with  these  af- 
firmations, others  which  imply  that  it  is  so  in  nothing 
but  the  name.  Hence  also  the  growing  tendency  to 
give  up  the  name.  If  it  be  Christain  only  in  name, 
that  were  better  given  up,  for  an  empty  name  is  a  pre- 
tence that  there  is  something  where  there  is  nothing. 
In  the  second  place,  co-operating  with  this  cause  of 
the  impression,  there  may  be  a  visionary  theor}'  of  the 
ideal  government, — the  theory  that  in  such  a  govern- 
ment there  would  be  no  trace  of  a  religious  character, 
as  in  an  ideal  church  there  would  be  no  trace  of  a  secu- 
lar character.  A  person  of  an  ingenuous  mind  can 
hardly  help  believing  that  the  ideal  ought  to  be  realized, 
and  he  would  very  naturally  take  the  progress  which 
has  been  made  in  the  enlargement  of  the  boundaries  of 
personal  liberty  as  having  for  its  end  the  realization  of 
that  ideal.  But  if  the  correctness  of  the  ideal  should 
be  conceded,  as  a  matter  of  theor}^,  yet  it  would  be 
true  in  this  case,  as  in  all  others,  that  the  realization 
of  the  ideal  is  impossible  in  this  world.  That  ideal 
would  be  like  the  point,  the  line,  and  the  surface  in 
mathematics  ;  available  for  abstract  processes  but  im- 
possible of  realization  in  material  things.  It  would 
be  in  politics,  analogous  to  Sir  William  Thomson's 
theory  of  matter  in  phy.sics,  that  it  is  "  the  rotating 
portions  of  a  perfect  fluid,  which  continuously  fills 
space,"  a  beautiful  theory  as  an  abstraction,  but  liable 
to  this  practical  objection  that  a  perfect  fluid,  one  that 
is  absolutely  without  viscosity,  and  free  from  internal 


Uiit enable  Theories.  295 

friction,  cannot  be  conceived  of  as  existing.  So  in 
this  case,  the  ideal  State  cannot  exist  or  even  be  con- 
ceived of  as  existing.  It  would  be,  in  the  nature  of 
things,  impossible,  as  we  have  shown,  to  keep  the  reli- 
gion of  a  people  from  entering  into  their  civil  institu- 
tions. This  ideal,  as  such,  ma}-  be  a  harmless  fancy, 
but  to  attempt  to  carr}-  it  out  in  the  practical  affairs  of 
the  world  would  be  injurious,  as  it  is  always  injurious 
to  attempt  to  conduct  the  affairs  of  life  upon  an  impos- 
sible hypothesis. 

Whatever  maj'  be  the  natural  histor}'  of  the  impres- 
sion in  question,  there  can  be  no  doubt  that  it  is  becom- 
ing prevalent  among  writers  of  eminence  ;  and  that 
some  of  our  courts,  or  rather,  perhaps,  some  of  our 
legislatures,  for  the  courts  have  been  governed  gener- 
ally in  their  decisions  by  the  letter  and  intent  of  the 
statutes,  have  shown  a  disposition  to  establish  it  in  the 
law  of  the  land. 

The  Rev.  M.  B.  Anderson,  D.  D.,  in  a  paper  read 
before  the  Social  Science  Association,  at  Saratoga 
Springs,  September,  1879,  on  the  Relations  of  Christi- 
anity to  the  Common  Laic,  and  published  in  the  Albany 
Laiv  Journal  of  October  4th  and  i  ith  of  that  year,  saj's  : 
' '  The  common  law  has  taken  account  of  Christianity 
as  a  positive  system  for  the  purpose  of  punishing  blas- 
phemy and  malicious  ridicule  of  Christian  doctrines 
and  rites.  The  common  law  has  recognized  these  as 
crimes  against  the  State,  and  not  as  sins  against  God. 
It  has  regarded  them  in  the  light  of  moral  nuisances, 
against  which  the  believers  in  Christianity  have  a  right 
to  be  protected.  .  .  .  That  portion  of  the  common 
law  which  makes  blasphemy,  Sunday  desecration,  the 
disturbance  of  religious  assemblies,  indictable  offences, 
seems  naturally  to  fall  into  the  class  of  laws  which  pro- 


296  Untenable  Theories. 


vides  for  the  community  protection  against  nuisances 
whether  physical  or  moral  in  their  nature." 

Judge  Cooley,  in  his  Coisiihitional  Limitations  (pp. 
588,  589),  says:  "It  is  frequently  said  that  Christi- 
anit}^  is  part  of  the  law  of  the  land.  In  a  certain  sense 
and  for  certain  purposes  this  is  true.  The  best  features 
of  the  common  law,  and  especially  those  which  regard 
the  family  and  social  relations,  which  compel  the  parent 
to  support  the  child,  the  husband  to  support  the  wife  ; 
which  makes  the  marriage  tie  permanent  and  forbids 
polygamy  ;  if  not  derived  from,  have  at  least  been  im- 
proved and  strengthened  by  the  prevailing  religion  and 
the  teachings  of  its  sacred  book.  But  the  law  does  not 
attempt  to  enforce  the  precepts  of  Christianity  on  the 
ground  of  their  sacred  character  or  divine  origin. 
Christianity  is  not  a  part  of  the  law  of  the 
land  in  any  sense  which  entitles  the  courts  to  take  no- 
tice of  and  base  their  judgments  upon  it,  except  so  far 
as  they  can  find  that  its  precepts  and  principles  have 
been  incorporated  in  and  made  a  component  part  of  the 
positive  law  of  the  State." 

He  questions  the  correctness  of  Justice  Story's  state- 
ment in  the  Girard  will  case,  that  Christianity  is  a 
part  of  the  common  law  in  the  sense  that  ' '  its  divine 
origin  and  truth  are  admitted,  and  therefore  that  it  is 
not  to  be  maliciously  and  openly  reviled  and  blasphemed 
against  to  the  annoyance  of  believers  or  to  the  injury 
of  the  public,"  saying,  "it  may  be  doubted,  however, 
if  the  punishment  of  blasphemy  is  based  necessarily 
upon  an  admission  of  the  divine  origin  or  truth  of  the 
Christian  religion,  or  incapable  of  being  otherwise  jus- 
tified." He  shows  that  the  punishment  of  blasphemy 
is  capable  of  being  otherwise  justified.  He  says  : 
"Blasphemy  has  been  defined  as  consisting  in  speak- 


Utitenable  Theories.  297 

ing  evil  of  the  Deity,  with  an  impious  purpose  to 
derogate  from  the  Divine  majesty  and  to  alienate  the 
minds  of  others  from  the  love  and  reverence  of  God. 
It  is  purposely  using  words  concerning  the  Supreme 
Being  calculated  and  designed  to  impair  and  destroy 
the  reverence,  respect,  and  confidence  due  him,  as  the 
intelligent  Creator,  Governor,  and  Judge  of  the  world. 
It  embraces  the  idea  of  detraction  as  regards  the  char- 
acter and  attributes  of  God,  as  calumny  usually  car- 
ries the  same  idea  when  applied  to  an  individual.  It 
is  a  wilful  and  malicious  attempt  to  lessen  men's  rev- 
erence of  God  by  denying  his  existence  or  his  attri- 
butes as  an  intelligent  Creator,  Governor,  and  Judge 
of  men,  and  to  prevent  their  having  confidence  in  him 
as  such.  Contumelious  reproaches  and  profane  ridi- 
cule of  Christ  or  of  the  Holy  Scriptures  have  the  same 
evil  effect  in  sapping  the  foundations  of  society  and 
of  public  order,  and  are  classed  under  the  same  head  " 

(PP-  589.590). 

His  objection  to  Justice  Story's  statement  seems  to  be 
that  the  common  law  cannot  properly  admit  the  divine 
origin  and  truth  of  the  Christian  religion,  nor  base  any 
action  on  the  admission.  It  is  clear  enough  that  blas- 
phemy may  be  punished  as  sapping  the  foundations  of 
public  order,  so  long  as  the  people  believe  in  the  divine 
origin  and  truth  of  Christianity.  It  is  not  so  clear  how 
it  can  be  punished  as  sapping  the  foundations  of  society, 
unless  the  divine  origin  and  truth  of  Christianit}'  be 
admitted.  In  the  one  case,  onl)^  the  fact  that  such  is 
the  belief  of  the  people  is  admitted.  In  the  other,  that 
belief  is  admitted  to  be  true.  Upon  the  question,  what 
the  decision  of  a  court,  under  the  statute  and  common 
law,  ought  to  be,  we  should  be  verj^  far  from  setting  up 
an  opinion  of  our  own,  against  that  of  one  who  isprob- 


298  Untenable  Theories. 

ably  the  most  eminent  living  jurist  in  the  land  ;  but 
our  question  is,  what  ought  the  statute  to  be  ;  would  a 
statute,  having  a  positive  Christian  character,  be  funda- 
mentally wrong  ;  and  would  the  courts  be  bound  to 
declare  it  so  to  be.  Upon  this  question,  we  flatter  our- 
selves that  we  shall  be  in  agreement  with  Judge  Cooley. 
He  says  :  ' '  But  while  thus  careful  to  protect  and  defend 
religious  freedom  and  equality,  the  American  Constitu- 
tions contain  no  provisions  which  prohibit  the  authori- 
ties from  such  solemn  recognition  of  a  superintending 
Providence,  in  public  transactions  and  exercises,  as  the 
general  religious  sentiment  of  mankind  inspires,  and 
as  seems  meet  and  proper  in  finite  and  dependent  beings. 
Whatever  may  be  the  shades  of  religious  belief,  all 
must  acknowledge  the  fitness  of  recognizing,  in  impor- 
tant human  affairs,  the  superintending  care  and  con- 
trol of  the  great  Governor  of  the  Universe  ;  and  of 
acknowledging,  with  thanksgiving,  his  boundless  favors 
or  bowing  in  contrition  when  visited  with  the  penalties 
of  his  broken  laws.  No  principal  of  Constituti'onal  law 
is  violated,  when  thanksgiving  or  fast  days  are  ap- 
pointed ;  when  chaplains  are  designated  for  the  army 
and  navy  ;  when  legislative  sessions  are  opened  with 
prayer  or  the  reading  of  the  Scriptures  ;  or  when  reli- 
gious teaching  is  encouraged,  by  a  general  exemption 
of  houses  of  religious  worship  from  taxation  for  the 
support  of  the  State  government." 

He  goes  on,  however,  to  say  that  "  This  public  recog- 
nition of  religious  worship,  however,  is  not  based  en- 
tirely, perhaps  not  even  mainly,  upon  a  sense  of  what 
is  due  to  the  Supreme  Being  himself,  as  the  author  of 
all  good,  and  of  all  law  ;  but  the  same  reason  of  State 
policy,  which  induces  the  government  to  aid  institutions 
of  charity  and  seminaries  of  instruction,  will  incline  it 


Untenable  Theories.  299 

also  to  foster  religious  worship  and  religious  institu- 
tions, as  conservators  of  public  morals,  and  valuable, 
if  not  indispensable,  assistants  in  the  preservation  of 
the  public  order. ' '  ' 

It  is  ver}'  plain  that  he  regards  the  public  recognition 
of  religious  worship,  in  the  particular  acts  he  has  men- 
tioned, as  based  in  part  upon  a  sense  of  what  is  due  the 
Supreme  Being  ;  that  is,  upon  a  purel}-  religious  consid- 
eration, his  only  question  being,  whether  it  is  entirely, 
or  even  mainly,  so  based.  This  being  conceded,  it  is 
difficult  to  see  how  the  government  can  be  justified  in 
basing  an  action  upon  "the  general  religious  senti- 
ments of  mankind,"  or  upon  a  recognition  of  the  truth 
of  bare  theism,  and  not  be  justified  in  basing  an  action 
on  the  general  Christian  sentiment  of  the  people,  or 
upon  a  recognition  of  the  truth  of  Christianity  ;  for  the 
ground  of  the  justification,  in  the  latter  case,  is  pre- 
cisely the  same  that  it  is  in  the  former  ;  and,  although 
not  so  extensive,  yet  is  so  ample,  that  if  accepted  as  a 
sufficient  basis  of  action  in  the  one  case,  it  cannot  be 
rejected  as  insufficient  in  the  other.  Now  if  it  is  not  a 
violation  of  any  principle  of  Constitutional  law  for  one 
department  of  the  government — the  executive — to  base 
an  action  upon  the  assumption  of  the  truth  of  the 
Christian  religion,  or  of  the  fact  that  the  people  believe 
it  to  be  true,  it  cannot  be  a  violation  of  any  such  princi- 
ple for  the  other  departments  of  the  government — the 
legislative  and  judicial — to  do  so.  Whether  with  or 
without  statute,  therefore,  the  government  is  positively 
Christian.  It  may,  in  all  its  departments,  base  an  ac- 
tion on  purely  Christian  reasons.  Not  only  may  it  do 
so,  but  there  are  cases,  as  we  shall  presently  show,  in 
which  it  cannot  help  doing  so. 

'  Ibid.,  pp.  587,  588. 


300  Sunday  Laws. 


CHAPTER  X. 

SUNDAY   LAWS,    OPINIONS   OF   THE    COURTS. 

The  older  statutes  and  the  present  statutes  of  the 
older  States  prohibit  all  sport,  worldly  labor,  work,  or 
business,  excepting  works  of  necessity  and  mercy,  on 
the  Lord's  Daj^ ;  thus  being  based  in  part  upon  the  con- 
sideration of  the  sanctity  of  the  day.  Some  of  the 
newer  statutes  are  so  framed  as  to  exclude  that  consid- 
eration entirely,  and  recognize  only  the  secular  basis  of 
the  law  ;  for  example,  the  statute  of  Illinois  on  Sunday 
is  as  follows,  viz. : 

"261.  Whoever  disturbs  the  peace  and  good  order 
of  society  by  labor  (works  of  necessity  and  charity  ex- 
cepted) or  by  any  amusement,  or  diversion,  on  Sunday, 
shall  be  fined  not  exceeding  $25. 

"  262.  Whoever  shall  be  guilty  of  any  noise,  rout,  or 
amusement,  on  the  first  day  of  the  week,  called  Sun- 
day, whereby  the  peace  of  any  private  family  maj^  be 
disturbed,  shall  be  fined  not  exceeding  $25." 

Under  such  a  statute  any  acts,  not  otherwise  prohib- 
ited, will  be  allowable  which  do  not  disturb  the  peace 
and  good  order  of  society,  or  the  peace  of  a  private 
family.  Contracts  and  notes  made  on  Sunday  will  be 
valid. 

The  Supreme  Court  of  Illinois  in  the  case  of  Rich- 
mond V.  Moore,  107  Freeman,  p.  429,  October,  1883, 
Walker  delivering  the  opinion,  affirmed  the  validity  of 
a  contract  made  on  Sunday.  Moore  having  engaged 
Richmond  to  sail  the  vessel  Scotia  during  the  season  of 
1880,  and  having  prevented  Richmond  from  fulfilling 
the  contract,  the  latter  brought  suit  for  damages.  Moore 
pleaded  in  defence  that  the  contract  having  been  made 


Opinions  of  the  Courts.  301 


on  Sunday  was  void.  The  Court  said  :  "...  The 
common  law  does  not  prohibit  contracts  on  Sunday. 
This  is  the  doctrine  of  all  decisions  of  English  and 
American  courts,  with  not  more  than  one  or  two  ex- 
ceptions. The  doctrine  that  contracts  made  on  Sun- 
day are  void  depends  therefore  alone  on  statutory  enact- 
ments. And  in  the  various  States  of  the  Union  the 
statutes  vary  in  language  or  substance,  and  the  deci- 
sions of  different  courts  have  been  based  on  the  phrase- 
ology of  their  several  statutes.  The  common  law,  on 
the  other  hand,  seems  always  to  have  prohibited  all 
judicial  decisions  on  Sunday.  The  29  Charles  11,  C.  7, 
p.  257,  seems  to  be  the  basis  of  the  enactments  of  the 
various  States  of  the  Union.  It  is  this  :  '  That  no 
tradesman,  artificer,  workman,  laborer,  or  other  person, 
whatsoever,  shall  do  or  exercise  any  worldl}^  labor, 
business,  or  work  on  the  Lord's  day.'  It  contains  ex- 
ceptions, of  which  are  works  of  necessit}^  and  charity. 
A  mere  glance  at  that  and  our  statute  will  show  that 
they  are  materially  different.  That  prohibits  labor  and 
business  ;  ours  only  prohibits  labor  or  amusement  that 
disturbs  the  peace  and  good  order  of  society. 
The  British  statute  makes  the  mere  act  of  labor  or  busi- 
ness penal.  .  .  .  Our  statute  by  its  ver}'  terms  is 
for  the  preservation  of  the  peace  and  good  order  of  .so- 
ciet}'  from  disturbance.  It  is  not,  nor  can  it  be  held  to 
be,  the  purpose  of  the  statute  to  compel  the  perform- 
ance of  a  religious  dutj',  however  necessary  to  the  fu- 
ture welfare  of  the  individual  failing  to  perform  it.  The 
object  of  the  statute  is  to  protect  persons,  keeping  the 
Christian  Sabbath  as  a  day  of  holiness,  from  disturb- 
ance in  that  observance,  and  not  to  compel  the  per- 
formance of  a  religious  duty,  as  such.  That  is  no  part 
of  governmental  duty  under  our  statutes.     The  spirit- 


302  Sunday  Lazvs. 

ual  welfare  of  our  people  is  left  entirely  to  the  hierarchy 
of  the  various  churches.  The  government  protects  all 
alike  in  their  religious  iDcliefs  and  unbelief.  It  is  no 
part  of  the  function  of  our  government  to  prescribe  and 
enforce  religious  tenets.  The  great  purpose  of  the  for- 
mation of  our  system  of  government  is  to  protect  the 
people  in  the  enjoyment  of  their  temporal  and  spiritual 
rights,  and  to  prohibit  crime,  vice,  and  wrong,  to  any 
portion  of  the  community  ;  and  to  pass  and  enforce 
laws  for  the  promotion  of  the  temporal  interests  of  the 
people,  and  as  far  as  possible  secure  their  temporal  wel- 
fare and  happiness.  Although  it  is  no  part  of  the 
functions  of  our  government  to  propagate  religion  and 
to  enforce  its  tenets,  when  the  great  body  of  the  peo- 
ple are  Christians  in  fact  or  sentiment,  our  laws  and  our 
institutions  must  necessarily  be  based  upon  and  embody 
the  teachings  of  the  Redeemer  of  mankind.  It  is  im- 
possible that  it  should  be  otherwise.  And  in  this  sense 
and  to  this  extent  our  civilization  and  our  institutions 
are  emphatically  Christian  ;  but  not  for  the  purpose  of 
compelling  men  to  embrace  particular  doctrines  or  creeds 
of  any  church,  or  to  support  one  or  another  denomina- 
tion by  public  burdens  ;  but  simply  to  afford  protection 
to  all  in  the  enjoyment  of  their  belief  or  unbelief.  It 
may  be  that  in  suppressing  crime,  vice,  and  immorality 
it  may  incidentally  enforce  religious  doctrines.  The 
Christian  religion  forbids  all  crime,  vice,  and  immoral- 
ity, and  good  government  equally  requires  their  sup- 
pression. They  are  suppressed  by  the  government 
because  required  for  the  general  welfare  ;  not  because 
they  are  religious  doctrines." 

The  Supreme  Court  of  Ohio  in  the  case  of  Bloom  v. 
Richards,  2,  Ohio  State  Reports,  38,  December,  1853, 
A.  G.  Thurman  delivering  the  opinion,  after  noticing 


opinions  of  the  Courts.  303 


the  fact  that  Christianity  was  part  of  the  common  law 

of  England,  said  :  "But  the  Constitution  of  Ohio  hav- 
ing declared  that  '  All  men  have  a  natural  and  inde- 
feasible right  to  worship  Almighty  God  according  to 
the  dictates  of  conscience,'  ...  it  follows  that 
neither  Christianity,  nor  any  other  S5'stem  of  religion, 
is  a  part  of  the  law  of  this  State.  We  have  no  union 
of  Church  and  State,  nor  has  our  government  ever  been 
vested  with  authoritj^  to  enforce  any  religious  obser- 
vance simply  because  it  is  religious.  .  .  .  We  are 
to  regard  the  statute  under  consideration  as  a  mere  mu- 
nicipal or  police  regulation  whose  validity  is  neither 
strengthened  or  weakened  by  the  fact  that  the  day  it 
enjoins  is  the  Sabbath  da}-." 

In  McGatrick  v.  Wasson,  4  Ohio  State  Reports,  571, 
572,  the  same  court  two  j-ears  later  said,  by  the  same 
justice:  "...  But  was  it  a  work  of  necessity 
[Shipping  cargo  on  Sunday  when  navigation  was  about 
to  close]  within  the  meaning  of  the  act  ?  In  answering 
this  question  we  must  always  keep  in  mind  that  it  is 
no  part  of  the  object  of  the  act  to  enforce  the  observ- 
ance of  a  religious  duty.  The  act  does  not  to  any 
extent  rest  upon  the  ground  that  it  is  immoral  or  irreli- 
gious to  labor  on  the  Sabbath  any  more  than  upon  any 
other  day.  It  simply  prescribes  a  day  of  rest,  from 
motives  of  public  policy,  and  as  a  civil  regulation  ;  and 
as  the  prohibition  itself  is  founded  on  principles  of  pol- 
ic}',  upon  the  same  principles  certain  exceptions  are 
made,  among  which  are  '  works  of  necessity  and  char- 
ity.' In  saying  this  I  do  not  mean  to  intimate  that 
religion  prohibits  works  of  necessity  or  charity  on  the 
Sabbath,  but  merely  to  show  that  the  principles  upon 
which  our  statute  rests  are  wholly  secular,  and  that 
they  are  none  the  less  so  because  they  may  happen  to 


304  Sunday  Laws. 

concur  with  the  dictates  of  religion.  Thus  the  day  of 
rest  prescribed  by  the  statute  is  the  Christian  Sabbath  ; 
yet  so  entirely  does  the  act  rest  upon  grounds  of  public 
policy  that,  as  was  said  in  Bloom  v.  Richards,  2  O.  S. 
R-.  39 1  >  392,  it  would  be  equally  Constitutional  and 
obligatory  did  it  name  any  other  day  ;  and  it  derives 
none  of  its  force  from  the  fact  that  the  day  of  rest  is 
Sunday.  For,  as  was  also  said  in  that  case,  no  power 
is  possessed  by  the  legislature  over  things  spiritual,  but 
only  over  things  temporal  ;  no  power  whatever  to  en- 
force the  performance  of  religious  duties  simply  because 
they  are  religious,  but  only  within  the  limits  of  the 
Constitution,  to  maintain  justice  and  promote  the  pub- 
lic welfare.     ..." 

A  member  of  a  religious  society  which  kept  Saturday 
sacred  as  a  day  of  rest  was  indicted  in  Pennsylvania 
for  laboring  on  Sunday  and  convicted.  In  this  case, 
Specht  V.  Commonwealth,  8  Penn.,312,  the  Supreme 
Court  of  that  State  said  : 

' '  Though  it  may  have  been  a  motive  of  the  law- 
makers to  prohibit  the  profanation  of  a  day  regarded 
by  them  as  sacred,  and  certainly  there  are  expressions 
used  in  the  statute  that  justify  this  conclusion,  it  is  not 
perceived  how  this  fact  can  vitally  affect  the  question 
at  issue.  All  agree  that  to  the  well-being  of  society 
periods  of  rest  are  absolutely  necessary.  To  be  pro- 
ductive of  the  required  advantage  these  periods  must 
occur  at  stated  intervals,  so  that  the  mass  of  which  the 
community  is  composed  may  enjoy  a  respite  from  labor 
at  the  same  time.  They  may  be  established  by  common 
consent ;  or,  as  is  conceded,  the  legislative  power  of 
the  State  may  without  impropriety  interfere  to  fix  the 
time  of  their  stated  return,  and  enforce  the  observance 
of  the  direction.     When  this  happens,  some  one  day 


Blasphemy.  305 

must  be  selected,  and  it  has  been  said  the  round  of  the 
week  presents  none  which  being  preferred  might  not 
be  regarded  as  favoring  some  one  of  the  numerous  re- 
ligious sects  into  which  mankind  are  divided.  In  a 
Christian  community,  where  a  very  large  majority  of 
the  people  celebrate  the  first  day  of  the  week  as  their 
chosen  period  of  rest  from  labor,  it  is  not  surprising 
that  that  day  received  the  legislative  sanction  ;  and  as 
it  is  also  devoted  to  religious  observances  we  are  pre- 
pared to  estimate  the  reasons  why  the  statute  should 
speak  of  it  as  the  Lord's  day,  and  denominate  the  in- 
fraction of  its  legalized  rest,  a  profanation.  Yet  this 
does  not  change  the  character  of  the  enactment.  It  is 
still  essentiall}'  but  a  civil  regulation,  made  for  the 
government  of  man  as  a  member  of  society,  and  obedi- 
ence to  it  maj^  properly  be  enforced  b}^  penal  sanctions." 
Justice  Coulter  dissented  from  the  grounds  assumed 
for  the  Constitutionality  of  the  act  of  the  Assembly, 
holding  "It  to  be  Constitutional  because  it  guarded 
the  Christian  Sabbath  from  profanation,  and  in  the 
language  of  the  Act,  prohibited  work  or  worldly  em- 
plo3'menton  the  Lord's  day,  commonl}' called  Sunday  ; 
and  not  because  of  the  mere  usefulness  of  the  day  as 
a  day  of  rest  and  cessation  from  worldly  labor." 


CHAPTER  XI. 

BI^ASPHEMY. 

Judge  Cooley  says  :  "  But  it  does  not  follow,  be- 
cause blasphemy  is  punishable  as  a  crime,  that  there- 
fore one  is  not  at  libertj-  to  di.spute  and  argue  against 
the  truth  of  the  Christian  religion,  or  of  any  accepted 


3o6  Blasphemy. 

dogma.  Its  '  divine  origin  and  truth  '  are  not  so  far 
admitted  in  the  law  as  to  preclude  their  being  contro- 
verted. To  forbid  '  discussion  on  this  subject,  except 
by  the  various  sects  of  believers,  would  be  to  abridge 
the  liberty  of  speech  and  of  the  press  in  a  point  which 
with  many  would  be  regarded  as  most  important  of  all. 
Blasphemy  implies  something  more  than  a  denial  of 
any  of  the  truths  of  religion,  even  of  the  highest  and 
most  vital.  A  bad  motive  must  exist ;  there  must  be 
a  wilful  and  malicious  attempt  to  lessen  men's  rever- 
ence for  the  Deity  or  for  the  accepted  religion.  But 
outside  of  such  wilful  and  malicious  attempt,  there  is 
a  broad  field  for  candid  investigation  and  discussion, 
which  is  as  much  open  to  the  Jew  and  Mahometan  as 
to  the  professors  of  the  Christian  faith.  No  author  or 
printer  who  fairly  and  conscientiousl}-  promulgates  the 
opinions,  with  whose  truths  he  is  impressed,  for  the 
benefit  of  others,  is  answerable  as  a  criminal.  A  ma- 
licious and  mischievous  intention  is  in  such  a  case  the 
broad  boundary  between  right  and  wrong  ;  it  is  to  be 
collected  from  the  ofiensive  levity,  scurrilous  and  op- 
probrious language,  and  other  circumstances,  whether 
the  act  of  the  party  was  malicious.  Updegraph  v. 
Commonwealth,  ii  S.  &  R.,  394.  Legal  blasphemy 
implies  that  the  words  were  uttered  in  a  wanton  man- 
ner "  with  a  wicked  and  malicious  disposition,  and  not 
in  a  serious  discussion  upon  any  controverted  point  in 
religion."  People  z'.  Ruggles,  8  Johns,  293, />^r  Kent, 
Ch.  J.  The  courts  have  always  been  careful  in  admin- 
istering the  law  to  say  that  they  did  not  intend  to  in- 
clude in  blasphemy  disputes  between  learned  men  upon 
particular  controverted  points.  The  Constitutional 
provisions  for  the  protection  of  religious  liberty  not 
onl}^  include  within  their  protecting  power  all  senti- 


The  State  v.  Chandler.  307 

merits  and  professions  concerning  or  upon  the  subject 
of  religion,  but  they  guarantee  to  every  one  a  perfect 
right  to  form  and  promulgate  such  opinions  and  doc- 
trines upon  religious  matters,  and  in  relation  to  tha 
existence,  power,  attributes,  and  providence  of  a  Su- 
preme Being,  as  to  himself  shall  seem  reasonable  and 
correct.  In  doing  this  he  acts  under  an  awful  respon- 
sibilit}^,  but  it  is  not  to  any  human  tribunal."  ' 

The  Supreme  Court  of  Delaware,  in  the  case  of  the 
State  V.  Chandler,  2  Harrington,  553,  said  :  "  The 
common  law  took  no  cognizance  of  offences  against 
God,  onl}^  when  by  their  inevitable  effect  they  became 
offences  against  man  and  his  temporal  security.  It 
was  never  pretended  by  an}'  common  law  court  that  he 
who  did  not  love  his  neighbor  as  himself,  or  who  did 
not  visit  the  fatherless  and  widows  in  their  affliction, 
and  keep  himself  unspotted  from  the  world,  was  there- 
fore indictable  at  common  law.  The  same  is  true  of 
the  laws  of  God,  as  revealed  in  the  Old  Testament. 
No  lawyer  ever  framed  an  indictment  in  a  common  law 
court  charging  that  the  defendant  did  not  honor  his 
father  and  mother,  or  merely  coveted  his  neighbor's 
property.  True,  there  are  many  instances  in  which 
the  divine  precepts  have  been  enacted  into  statutes, 
and  in  case  of  violation  of  these  or  of  any  divine  man- 
date which  had  been  adopted  into  the  common  law, 
because  the  peace  and  safety  of  civil  society  could  not 
be  secured  without  it,  the  common  law  courts  become 
the  avengers  of  the  public  wrong.  ...  It  [the 
common  law]  became  the  preserver  of  the  peace  and 
good  order  of  society  throughout  the  land,  and  noticed 
what  was  the  religion  of  the  people  to  the  end  that  it 
might  preserve  that  peace  and  good  order.  It  sus- 
'  Constitutional  Limitations,  pp.  591,  592. 


3o8  Christian  Character  Remains. 

tained  indictments  for  wantonly  and  maliciously  blas- 
pheming God,  or  the  founder  of  the  Christian  religion, 
because  such  blasphemy  tended  to  subvert  the  peace 
and  good  order  which  it  was  bound  to  protect.  But  it 
sustained  no  indictment  for  a  mere  sin  against  God,  as 
a  common  law  offence,  where  these  objects  of  its  care 
were  not  affected.  It  did  not  look  to  the  condition  of 
man  in  another  world  to  punish,  and  thus  prepare  him 
for  it  in  this.  That  was  the  loathsome  duty  of  some 
ecclesiastical  commissioner,  some  fiery  bigot  or  Star 
Chamber  judge.  While  these  punished  blasphemy  as 
a  spiritual  offence,  pro  salute  animis,  the  common  law 
only  punished  it  when  it  tended  to  create  a  riot,  or 
break  the  peace,  or  subvert  the  very  foundations  on 
which  civil  society  rested,     ,     .     ," 


CHAPTER  XII. 

CHRISTIAN    CHARACTER    REMAINS. 

The  principles  set  forth  in  these  decisions  are  in  the 
main  unquestionably  correct.  It  is  right  that  the  gov- 
ernment should  carefully  abstain  from  inflicting  a  pen- 
alty for  an  offence  which  is  against  God  only,  and 
which  does  not  at  the  same  time  threaten  the  peace 
and  good  order  of  society  ;  right,  also,  that  it  should 
take  pains  to  make  it  understood,  when  the  offence  is 
against  both  God  and  man,  that  it  punishes  only  for 
the  offence  against  man.  But  the  assinnption  which 
seems  to  be  made  in  some  of  these  decisions  and  in  the 
legislation  upon  which  they  are  based,  that  the  govern- 
ment in  doing  this  has  acted  upon  some  principle 
which  requires  the  removal  of  every  vestige  of  Chris- 


Christian  Character  Remai^is.         309 

tiau  basis,  motive,  and  purpose  from  its  laws,  is  un- 
warranted. Such  removal  is  not  accomplished  even 
when  the  statute  on  Sunda}-  observance  is  so  framed 
that  the  penalty  for  its  violation  can  be  inflicted  only 
for  the  disturbance  of  the  peace  and  good  order  of  so- 
ciety. Besides,  the  making  of  laws  with  penalties 
attached  to  them  does  not  cover  the  whole  field  of 
governmental  action.  There  is  a  large  scope  in  which 
legislation,  not  penal,  may  be  rightly  determined  by 
Christian  considerations.  The  assumption  in  question 
is  improbable,  unreasonable,  and  inconsistent  with 
facts. 

ist.  It  might  be  probable  enough  that  a  great  body 
of  Christian  people,  as  they  become  enlightened  and 
imbued  with  the  spirit  of  their  master,  would  abstain 
from  requiring  the  unbeliever  to  observe  a  religious 
ordinance  for  religious  reasons  ;  but  when  they  have 
the  power  in  their  own  hands,  when  their  religion  is 
already  incorporated  with  their  civil  institutions,  is  it 
probable  that,  without  any  known  or  possible  motive, 
the}'  would  go  beyond  that,  cast  their  religion  entirel}- 
out  of  their  civil  institutions,  and  exclude  every  Chris- 
tian motive,  reason,  and  consideration  from  their  action 
as  a  body  politic  ? 

2d.  It  is  unreasonable.  A  father  might  very  well 
make  it  understood  that  a  waif,  happening  to  be  a 
member  of  the  family,  was  not  required  to  perform 
certain  acts  of  respect  and  obedience  as  2i  filial  AvXy,  but 
only  for  the  sake  of  the  good  order  of  the  family. 
Should  the  father  take  his  journey  into  a  far  country, 
leaving  the  management  of  his  estate  to  his  children 
until  his  return,  the  children  likewise  might  well  make 
it  understood  that  the  waif  would  not  be  required  to 
do  as  a.  filial  duty  anything  that  the  father  had  required 


3IO         Christian  Character  Reinai^is. 

to  be  done,  but  only  as  obligatory  for  the  good  order 
of  the  family.  It  would  be  very  strange  if  any  one 
of  the  children  should  argue  that,  by  so  doing,  they 
had  divested  the  regulations  prescribed  for  the  govern- 
ment of  the  family  of  all  fatherly  authority,  and  that 
those  regulations  were  binding,  and  ought  to  be  recog- 
nized as  binding  upon  themselves,  not  as  a  filial  duty, 
but  only  for  the  good  order  of  the  family.  For  the 
discrimination  in  behalf  of  the  waif  there  is  reason 
and  motive  enough  ;  for  the  extension  of  it  to  the  chil- 
dren there  is  neither  reason  nor  motive,  and  the  hypoth- 
esis that  such  extension  of  it  is  a  necessary  consequence 
of  making  it  in  behalf  of  the  waif  is  absurd. 

Again,  it  is  unreasonable  because  such  a  divorce  of 
co-existing  motives  as  is  supposed  in  the  case  is  unnat- 
ural. When  two  different  motives  are  known  to  exist 
in  the  same  breast  at  the  same  time,  both  of  which 
may  prompt  to  the  same  action,  it  is  hardly  reasonable 
to  afiirm  that  the  act  has  been  produced  by  either 
motive,  to  the  entire  exclusion  of  the  other.  A  man, 
looking  forward  to  an  action  in  which  a  good  and  a 
bad  motive  may  be  combined,  may  desire  and  purpose 
to  suppress  the  bad  and  act  only  from  the  good  motive. 
But  looking  back  at  the  action  done,  it  would  hardly 
be  proper  for  him  to  afiirm  as  a  matter  of  unquestion- 
able fact  that  the  bad  motive  had  been  entirely  in- 
operative. Much  more  difficult  and  improbable  would 
the  divorce  of  the  motives  be  if  both  were  of  such 
character  as  to  receive  the  heartiest  approval  of  his 
conscience.  When  a  man  relieves  the  sufferings  and 
saves  the  life  of  a  sick  horse,  his  pecuniary  interests 
and  his  humane  feelings  will  both  combine  in  prompt- 
ing him  to  the  act,  and  the  assumption  must  be  that 
both  were  operative  in  what  he  did.     If  he  were  a 


Sunday  Lazvs  have  a  Christian  Basis.      3 1 1 

member  of  a  large  association  which  employed  many 
horses  in  its  business,  and  all  the  members  were  pos- 
sessed of  the  like  humane  feelings,  then  the  humane 
motive  must  be  presumed  to  have  entered,  with  the 
economic  motive,  into  every  rule  of  the  company  re- 
garding the  life  of  the  beast.  Indeed  if  the  animals 
were  cattle  instead  of  horses,  and  the  association  a 
slaughtering  company  whose  object  it  was  to  take 
instead  of  to  save  the  life  of  the  animals,  we  should 
still  insist  that  humanity  did  in  some  degree  enter  into 
the  regulations  prescribed  for  the  business.  It  is  as 
unreasonable  to  suppose  that  Christian  motives  have 
been  entirely  excluded  from  the  legislation  of  a  Chris- 
tian people  on  subjects  that  have  both  a  religious  and 
secular  character,  as  to  suppose  that  humane  motives 
have  been  entirely  excluded  from  the  legislation  of  a 
humane  people  against  cruelty  to  animals.  It  is  verj- 
plain  that  this  supposition  springs  from  an  erroneous 
presupposition  as  to  the  nature  of  our  political  insti- 
tutions. 


CHAPTER  XIII. 

SUNDAY   LAWS   HAVE   A    CHRISTIAN    BASIS. 

Judge  Cooley  in  his  Constitutional  Limitations  (  p. 
594)  says  :  ' '  The  laws  which  prohibit  the  ordinary 
employments  on  Sunday  are  ....  based  upon 
the  demonstrations  of  experience  that  one  day's  rest 
in  seven  is  needful  to  recuperate  the  exhausted  energies 
of  body  and  mind."  And  the  Supreme  Courts  of  Ohio 
and  Illinois  in  the  decisions  referred  to  make  the  same 
assumption.  When  and  to  whom  was  the  demonstra- 
tion of  experience  made  ?     Not  to  the  ancient  Greeks, 


312     Sunday  Laws  have  a  Christian  Basis. 

with  all  their  speculative  penetration  ;  not  to  the  an- 
cient Romans,  with  all  their  practical  wisdom  ;  not  to 
the  millions  of  China,  nor  to  the  various  peoples  of 
India,  during  all  the  ages  of  their  civilization.  France 
during  the  revolution  of  1793  substituted  one  day  in 
ten,  for  the  one  in  seven,  as  the  day  of  rest,  and  the 
failure  of  that  experiment  may  have  tended  to  confirm 
the  fitness  of  the  old  order  to  the  nature  of  man.  But 
the  fitness  of  one  day  in  seven  rather  than  one  day  in 
ten  was  no  discovery  of  man.  It  may  be  admitted  that 
the  demonstration  of  experience  does  justify  the  ac- 
ceptance of  one  day  in  seven,  but  to  say  that  the  fitness 
of  one  day's  rest  in  seven  was  first  demonstrated  by 
experience,  and  that  then  the  Sabbatic  legislation  was 
based  on  the  demonstration,  is  to  give  an  untrue  history 
of  that  legislation.  The  actual  historical  order  was  : 
first,  the  divine  institution,  or  purported  divine  institu- 
tion ;  then  legislation  based  upon  that  institution,  and 
then  the  confirmation  of  experience. 

Again.  Why  was  Sunday  and  not  Wednesday,  or 
some  other  day  of  the  w^eek,  made  the  day  of  rest? 
The  Supreme  Court  of  Ohio  in  the  case  of  Bloom  v. 
Richards,  already  referred  to,  says  :  "  We  are  to  regard 
the  statute  under  consideration  as  a  mere  municipal  or 
police  regulation  whose  authority  is  neither  strength- 
ened nor  weakened  by  the  fact  that  the  day  of  rest  it 
enjoins  is  the  Sabbath  day.  .  .  .  Regarded  merel)^ 
as  an  exertion  of  legislative  authority,  the  act  would 
have  had  neither  more  nor  less  validity  had  any  other 
day  been  adopted."  ' 

The  Supreme  Court  of  Illinois  in  the  case  already 
referred  to,  says  :  ' '  Considerations  of  public  policy  de- 
manding such  periods  of  rest,  and  the  great  body  of 

'  2  Ohio  State  Reports,  392. 


Sunday  Laws  have  a  Christian  Basis.      3 1 3 


Christians  holding  the  observance  of  the  Sabbath  to  be 
a  religiousduty ,  it  is  natural  that  the  law-making  power, 
as  a  matter  of  public  policy,  should  specify  Sundaj^  as 
the  day  of  rest  ;  thereb)^  conforming  public  policy  to 
religious  sentiment.  But  that  Sunday  is  kept  as  a  holy 
day  by  most  Christian  denominations  neither  adds  to 
nor  detracts  from  the  validity  of  the  enactment.  Had 
any  other  day  of  the  week  been  selected  the  enactment 
would  have  had  the  same  binding  force."  ' 

If  these  statements  were  not  intended  to  affirm  the 
identical  proposition,  that  a  law,  if  made  by  the  con- 
stituted authorit}^  would  be  a  law,  they  were  intended 
to  affirm  that  there  is  a  something,  called  the  State, 
separate  from  the  People,  which  is  governed  in  all  its 
action  by  nothing  but  considerations  of  public  policy, 
and  that  this  something,  though  existing  in  a  country 
in  which  "The  will  of  the  people  is  the  law  of  the 
land,"  is  so  totally  destitute  of  all  religious  character 
that  the  particular  day  appointed  as  the  day  of  rest 
would  have  been  to  it  a  matter  of  utter  indifference. 
So  far  as  its  own  character  and  the  considerations  by 
which  it  is  to  be  governed  are  concerned,  it  might  just 
as  well  have  appointed  any  other  day  than  Sunday.^ 
It  has  been  said  that  if  the  people  of  this  country  were 
Mohammedan,  the  legal  day  of  rest  would  have  been 
Friday,  which,  it  is  alleged,  proves  that  the  State  is, 
and  must  be  indifferent  to  all  religious  consider- 
ations in  the  appointment  of  the  day.     If  it  did  prove 

'  107  Illinois  Reports,  Freeman,  p.  437. 

*  Here  we  have  mysticism  employing  its  phantasm  for  the  sup- 
port of  the  anti-Christian  theory  of  the  State,  as  we  had  it  before 
(p.  237)  employing  a  like  creation  of  its  fancy  for  the  support 
of  the  Christian  theory.  There  the  State  was  a  person.  Here 
it  is  a  nondescript,  undefined  something. 


3 1 4     Siuiday  Laws  have  a  Christian  Basis. 


any  such  thing,  it  would  be  that  the  State,  as  an  ab- 
straction, is  thus  indifferent ;  but  with  such  a  State, — 
an  imaginary  State,  not  composed  of  people,  we  have 
nothing  to  do.  The  fact  adduced  proves,  however,  the 
very  opposite,  viz.:  that  the  religious  reasons  which 
induce  the  people  to  observe  the  day,  enter  of  necessity 
as  an  effective  and  determining  factor  into  the  legisla- 
tion prescribing  and  regulating  the  observance. 

If,  upon  my  returning  from  the  field,  after  a  hard 
day's  work,  weary  almost  to  fainting,  and  very  thirsty, 
I  should  find  on  my  table  a  glass  of  wine  and  a  glass 
of  water,  and  I  should  choose  the  wine,  it  would  be 
preposterous  for  me  to  say  that  I  was  determined  in  my 
choice  solely  by  the  desire  to  quench  my  thirst,  and 
not  at  all  by  ni}^  desire  for  the  invigorating  influence  of 
the  wine.  It  is  no  less  preposterous  to  say,  when  the 
State  chooses  the  Lord's  Day  as  the  legal  day  of  rest, 
that  it  was  determined  in  its  choice  wholly  by  temporal 
and  secular  considerations,  and  not  at  all  by  religious 
considerations. 

It  is  beyond  all  question  that  part  of  the  law  appointing 
a  weekly  day  of  rest — that  part  which  determines  that 
it  shall  be  one  da)'  in  seven  and  not  one  day  in  six,  or 
eight,  or  ten,  and  that  part  which  makes  the  Lord's 
Day  and  not  some  other  day  the  daj'  of  rest — was  deter- 
mined by  Christian  considerations,  and  by  Christian 
considerations  alone.  The  choice  of  the  people  had 
been  determined  b}'  those  considerations,  and  it  was 
the  will  of  the  people  that  gave  this  feature  to  the  law. 

It  requires  a  great  leap  in  logic  to  assume  that  the 
State  in  exempting  the  unbeliever  from  all  obligation  to 
observe  Sunday  as  a  religious  ordinance,  and  inflicting 
penalty  only  w^hen  the  non-observance  is  of  such  a  char- 
acter as  to  disturb  the  peace  and  good  order  of  society, 


Sunday  Laws  have  a  Christian  Basis.      3 1  5 

has  thereby  removed  ever}-  Christian  consideration  from 
the  basis  of  the  law  and  proclaimed  itself  in  all  things, 
non-Christian.  The  very  statute  which  Mr.  Justice 
Thurman  was  construing  in  Bloom  v.  Richards,  saying 
that  its  prohibition  in  relation  to  Sunday  was  "  a  mere 
civil  regulation,"  provides  in  its  first  section  that  "  if 
any  person  shall  be  found  on  the  first  daj-  of  the  week, 
commonly  called  Sunday,  sporting,  fishing,  shooting, 
or  at  common  labor,"  he  shall  be  punished.  Surely 
fishing  would  be  no  offence  if  the  law  had  been  intended 
to  be  only  a  civil  regulation  to  preser\-e  the  peace  and 
good  order  of  society.  Mr.  \V.  M.  Ramse\-,  of  counsel 
for  the  plaintiff"  in  Minor  <?/«/.  v.  The  Board  of  Education 
of  Cincinnati,  in  alluding  to  this  point  in  the  decision 
verj-  aptly  said  :  "  A  quiet  seat  by  the  bank  of  a  pleas- 
ant stream  with  a  fishing-rod  would  be  an  admirable 
disposition  of  one's  self  for  a  day  of  rest  and  reinvigora- 
tion  after  six  days  of  toil." 

If  we  look  at  the  statutes  of  Ohio  and  Illinois  respec- 
tivel)-,  as  a  whole,  we  shall  find  in  them  ample  ground 
for  the  opinion  that  the  legislatures  of  those  States 
intended,  in  the  form  they  gave  to  their  penal  Sunday 
statutes,  to  restrict  the  infliction  of  the  penalty-  to  the 
offence  against  man,  and  did  not  intend  to  remove  ever}- 
Christian  consideration  from  the  laws  of  the  State. 
The  statutes  of  Ohio  which  were  in  force  when  the 
decision  in  .Bloom  :•.  Richards  was  rendered  provided 
that  the  family  Bible  should  be  exempt  from  execution. 
The  Apprentice  law  bound  the  master  to  give  to  the 
apprentice  at  the  close  of  his  term  a  new  Bible.  The 
statute  regulating  county  jails  required  that  each  pris- 
oner be  furnished  with  a  Bible.  The  Penitentiar\-  act 
required  the  warden  of  the  penitentiary'  to  furnish  each 
criminal  '^•ith  a  Bible.     It  required  that  a  Chaplain  be 


J 


1 6     Sunday  Laws  have  a  Christian  Basis. 


employed,  that  he  "  shall  be  a  minister  of  the  Gospel, 
in  good  standing  in  some  one  of  the  denominations  of 
this  State"  ;  that  he  "  shall  devote  his  whole  time  and 
ability  to  the  welfare  of  the  convicts  ' '  ;  that  he  shall 
hold  his  office  for  one  j^ear,  and  that  he  shall  receive  an 
annual  salary. 

The  statutes  of  Illinois,  S.  31,  C.  108,  relating  to 
the  penitentiary,  which  were  in  force  when  the  decision 
of  the  Supreme  Court  in  Richmond  v.  Moore  was  ren- 
dered, provided  that  ' '  Facilities  for  attending  religious 
services  regularly  on  Sundays  shall  be  afforded  each 
convict  so  far  as  the  same  can  be  done  judiciously,  and 
upon  no  pretext  shall  a  convict,  on  contract,  be  required 
to  labor  on  Sundaj^ ;  nor  shall  any  convict  be  required 
to  do  any  other  than  necessary  labor  for  the  State  on 
that  day." 

Section  44  provided  ' '  That  no  labor  shall  be  per- 
formed by  the  convicts  in  the  penitentiary  of  this  State 
in  any  stone  quarry  or  other  place  outside  the  walls  of 
the  penitentiar>\  " 

If  there  is  any  place  in  the  world  where  labor  on 
Sunday  will  not  disturb  the  peace  and  good  order  of 
society,  is  it  not  inside  the  walls  of  a  penitentiar}-  ? 
Surely  it  cannot  be  maintained  that  this  regulation  w^as 
intended  to  be  purely  civil,  merelj'  to  preserve  the  good 
order  of  society  from  disturbance,  and  is  destitute  of 
all  Christian  character.  Can  it  be  truthfully  said  that 
it  was  based  upon  purely  economical  reasons  derived 
from  the  demonstrations  of  experience,  and  to  no  degree 
and  in  no  respect  whatever  upon  the  Christian  reason 
derived  from  the  convictions  of  the  people  ?  Can  it  be 
maintained  that  purely  secular  and  economical  consid- 
erations form  the  basis  of  the  statute  which  provides  for 
the  appointment  of  a  chaplain  for  the  penitentiary,  and 


Sicnday  in  the  ConsiittUion.  3 1  7 

for  the  payment  of  his  salarj-,  and  which  requires  him 
"  to  perform  religious  services  in  the  penitentiar}-, 
.  to  visit  the  convicts  in  their  cells  for  the  pur- 
pose of  giving  them  moral  and  religious  instruction," 
and  ' '  to  furnish  at  the  expense  of  the  State  a  Bible  to 
each  convict ' '  ? 


CHAPTER    XIV. 

SUNDAY    IN   THE    CONSTITUTION   OF    THE    UNITED 
STATES. 

The  7th  Section  of  Article  I.  of  the  Constitution  of 
the  United  States  contains  the  following  provision,  viz.  : 

"If  an^-  Bill  shall  not  be  returned  by  the  President 
within  ten  days  (Sundaj-s  excepted)  after  it  shall  have 
been  presented  to  him,  the  same  shall  be  a  law,  in  like 
manner  as  if  he  had  signed  it,  unless  the  Congress  by 
their  adjournment  prevent  its  return,  in  which  case  it 
shall  not  be  a  law." 

This  exemption  of  the  President  from  the  necessity 
of  studying  the  merits  of  a  bill  on  Sunda}-  surely  could 
not  have  been  based  solely  on  a  regard  for  the  peace 
and  good  order  of  society,  and  in  no  degree  whatever 
on  a  respect  for  the  religious  character  of  the  day. 
How  could  such  study  in  the  privac\-  of  the  executive 
office  disturb  that  peace  and  good  order  ? 

In  view  of  this  exemption  and  the  ground  upon  which 
it  was  undoubtedly  based,  it  cannot  be  maintained  that 
President  Lincoln  either  violated  the  spirit  or  .strained 
the  letter  of  the  Constitution  when  he  issued  the  fol- 
lowing order,  viz.  : 


3 1 8  Stmday  in  the  Exposition. 

"  Executive  Mansion, 
"Washington,  Nov.  15,  1862. 

"The  President,  Commander-in-Chief  of  the  Army 
and  Nav}',  desires  and  enjoins  the  orderly  observance 
of  the  Sabbath  by  the  officers  and  men  in  the  miHtary 
and  naval  service.  The  importance  for  man  and  beast 
of  the  prescribed  weekly  rest,  the  sacred  rights  of  a 
Christian  people,  and  a  due  regard  for  the  Divine  will, 
demand  that  Sunday  labor  in  the  Armj^  and  Navy  be 
reduced  to  the  measure  of  strict  necessity.  The  disci- 
pline and  character  of  the  national  forces  should 
not  suffer,  nor  the  cause  they  defend  be  imperilled  by 
the  profanation  of  the  day  or  name  of  the  Most 
High.     ..." 

It  is  in  no  violation  of  either  the  spirit  or  letter  of  the 
Constitution  that  in  the  military  and  naval  academies, 
and  at  all  the  army  posts,  Sunday  is  kept  as  a  day  of 
rest  and  Christian  worship,  by  the  authority  of  the 
government. 

In  1892  the  World's  Columbian  Exposition,  a  body 
incorporated  b}-  the  legislature  of  the  State  of  Illinois 
for  the  purpose  of  celebrating  the  four  hundredth  anni- 
versary of  the  discovery  of  America  by  an  exposition 
of  the  world's  arts  and  manufactures,  to  be  held  in  the 
city  of  Chicago  in  1893,  sought  aid  of  the  United  States 
government  in  carrying  forward  their  enterprise.  Con- 
gress, by  act  of  August  5,  1892,  granted  aid  to  the 
amount  of  ^2,500,000  which  was  to  be  delivered  in 
5,000,000  half  dollar  silver  souvenir  coins.  To  this 
grant  the  following  condition  was  attached,  viz.  : 

"  Section  2.  And  it  is  hereby  declared  that  all  appro- 
priations herein  made  for  or  pertaining  to  the  World's 
Columbian  Exposition,  are  made  upon  the  condition 


Sufiday  in  the  Cojistit^itioji.  3 1 9 


that  the  said  exposition  shall  not  be  opened  to  the 
public  on  the  first  day  of  the  week,  commonly  called 
Sunday  ;  and  if  the  said  appropriations  be  accepted  by 
the  corporation  of  the  State  of  Illinois,  known  as  the 
World's  Columbian  Exposition,  upon  that  condition,  it, 
is  hereby  made  the  dut}^  of  the  World's  Columbian 
Exposition  Commission,  created  by  act  of  Congress  of 
April  twenty-fifth,  eighteen  hundred  and  ninety,  to 
make  such  rules,  or  modification  of  the  rules  of  the  said 
corporation,  as  shall  require  the  closing  of  the  Exposi- 
tion on  the  said  first  day  of  the  week,  commonly  called 
Sunday." 

The  grant  was  accepted,  and  on  October  25,  1892, 
rules  were  adopted  by  the  corporation  and  the  connnis- 
sion,  among  which  was  one  providing  that  the  gates 
should  be  open  from  May  ist  to  October  30th  ever>^  day 
of  the  week  except  Sunday,  when  the  gates  should  be 
closed.  B}-  another  rule  the  Board  of  Directors  of  the 
corporation  reserved  ' '  the  right  to  amend  or  add  to 
these  rules  whenever  it  may  be  deemed  necessarj'  for 
the  interest  of  the  Exposition."  B}' act  of  Congress 
March  3,  1893,  the  Secretary-  of  the  Treasur}'  was  di- 
rected to  retain  part  of  the  appropriation  until  the  local 
corporation  had  given  the  government  securit}-  for  a 
proposed  loan  for  the  payment  of  awards  for  foreign 
exhibitors,  or  had  paid  such  awards,  since  such  awards 
constituted  a  debt  for  which  the  local  corporation  was 
liable  under  the  act  creating  the  Exposition,  and  which 
the  government  was  in  honor  bound  to  see  paid.  On 
May  12th  the  board  of  directors  of  the  World's  Colum- 
bian Exposition  resolved  to  open  the  grounds,  but  not 
the  buildings,  on  vSunday,  and  on  May  i6th  passed  cer- 
tain resolutions  which  recited  that  there  was  a  wide- 
spread demand  that  not  only  the  grounds  but  the  main 


320  Sunday  in  the  Exposition. 

buildings  should  be  opened,  and  that  the  welfare  of  the 
public,  and  especially  the  wage-workers,  would  be  pro- 
moted by  permitting  the  people  to  enter  the  Exposition 
on  Sunday,  and  that  a  large  majority  of  the  people  of 
this  country  demanded  this  privilege.  Also  that  the 
withdrawal  by  Congress,  by  the  act  of  March  3,  1893, 
of  over  one  fifth  of  the  entire  appropriation  made  in  aid 
of  the  Exposition,  had  thereby  removed  all  obligation 
on  the  part  of  the  corporation  to  comply  with  the  con- 
ditions of  the  act  of  August  5th.  It  was  resolved  that 
both  the  buildings  and  grounds  should  be  opened  during 
the  Sundays  of  the  Exposition  period  ;  that  the  opera- 
tion of  the  machinery  should  be  suspended  as  far  as 
practicable,  and  all  exhibitors  and  emploj^ees  relieved 
from  duty  except  so  far  as  essential  to  the  protection 
of  life  and  property  ;  that  there  should  be  religious  ser- 
vices and  sacred  music  ;  and  further,  that  "  In  case  the 
above  is  carried  into  effect,  this  corporation  pledges  and 
obliges  itself  to  return  to  the  government  of  the  United 
States  that  portion  of  the  appropriation  received  by  vir- 
tue of  act  of  August  5,  1S92,  to  7C'it,  the  sum  of  $1,929- 
120,  from  and  out  of  the  net  receipts  of  this  corporation, 
after  the  payment  of  all  just  and  valid  obligations, 
before  any  pa3'ment  shall  be  made  to  the  stockholders 
or  the  city  of  Chicago." 

The  United  States  brought  suit,  in  the  United  States 
Circuit  Court,  (N.  D.,  Illinois,)  praying  that  the 
World's  Columbian  Exposition  might  be  enjoined  from 
opening  the  Exposition  and  the  grounds  and  gates 
thereof  on  Sunday,  and  be  commanded  to  close  the 
Exposition  and  grounds  and  gates  on  that  da}'. 

Objection  was  made  by  the  defendant  to  the  equity 
jurisdiction  of  the  court,  but  the  objection  was  over- 
ruled, on  the  ground  that  "  The  government  has  suffi- 


Sunday  in  the  Constitution.  321 

cient  interests  at  stake,  because  it  has  possession  of  the 
grounds,  has  property  there,  and  has  pecuniar>^  interest 
in  imported  goods  subject  to  duty,  and  also  indirectly 
in  the  gate  receipts  and  income  from  all  sources,  and, 
besides,  is  under  the  highest  obligations  of  honor  and 
law  to  protect  the  property  and  interests  of  foreign  na- 
tions and  of  the  several  States  of  the  Union,  and  of  all 
exhibitors  brought  there  upon  its  invitation."  Also 
upon  the  ground  that  the  grant  of  $2,500,000  to  the 
corporation  is  a  charitable  donation. 

The  court  on  June  8,  1893,  decided  that  the  injunc- 
tion prayed  for  should  be  issued,  Woods  and  Jenkins, 
circuit  judges,  concurring,  and  Grosscup,  district  judge, 
dissenting. 

The  defendant  appealed  to  the  United  States  Circuit 
Court  of  Appeals,  Seventh  District,  and  the  appeal  was 
sustained.  The  Court  on  July  26,  1893,  said:  "We 
have  given  to  this  record  patient  investigation,  and  to 
the  able  arguments  of  counsel  the  attention  which  their 
merits  deserved  and  the  character  of  the  controversy 
demanded,  and  we  can  discover  no  tenable  ground,  ex- 
cepting the  case  from  the  ordinary  rule  which  requires, 
in  order  to  the  exercise  of  jurisdiction  in  chancery, 
some  injurj-  to  property,  whether  actual  or  prospective  ; 
some  invasion  of  property  or  civil  rights  ;  some  injury 
irreparable  in  its  nature  and  which  cannot  be  redressed 
at  law.  The  application  of  that  rule  is  fatal  to  the 
maintenance  of  the  order  under  review,  and  whatever 
temptation  to  leave  the  beaten  path  the  record  of  a  par- 
ticular case  may  be  supposed  to  afford,  it  is  not  for 
courts  of  justice  in  the  exercise  of  an  unregulated  dis- 
cretion to  remove  the  settled  landmarks  of  the  law. 

"The  order  is  reversed,  and  the  cause  remanded 
for    further    proceedings,    not   inconsistent   with   this 


32  2  Sunday  i?i  the  Exposition. 


opinion  "  ;  Fuller,  circuit  judge,  and  Brewer  and 
Allen,  district  judges,  all  agreeing. 

The  defendants  before  the  Circuit  Court  had  an- 
swered to  the  prayer  of  the  plaintiff  among  other 
things,  that,  "  If  the  true  meaning  and  intent  of  Con- 
gress as  expressed  in  said  act  of  Congress  of  August  5, 
1892,  was  to  prohibit  and  restrain  the  public  from  their 
entrance  upon  and  enjoyment  of  the  grounds  and  ap- 
purtenances of  Jackson  Park  and  Midway  Plaisance, 
not  occupied  by  buildings  erected  for  the  purpose  of 
installation  of  exhibits  at  said  Exposition,  or  of  the  en- 
tire Exposition,  on  the  first  day  of  the  week  commonly 
called  Sunda}^  then  the  said  defendant  avers  and 
charges  that  said  act  of  Congress  is  an  unlawful  re- 
striction of  the  rights  and  privileges  of  the  public,  is 
contrary  to  the  laws  and  Constitution  of  the  State  of 
Illinois,  and  repugnant  to  the  Constitution  of  the 
United  States,  and  is  therefore  wholly  void." 

To  this  Judge  Wood  in  giving  his  opinion  replied  : 
"  Whether  influenced  by  the  sentiment  against  such 
opening  or  by  other  considerations,  it  would  be  irrele- 
vant to  inquire,  but  Congress  in  extending  further  aid 
saw  fit  to  couple  with  it  the  condition  and  requirement 
that  the  Exposition  should  be  closed  on  Sundays. 
Without  making  the  gift,  the  government,  as  I  think, 
might  at  any  time  have  enacted  or  required  the  adop- 
tion of  this  rule." 

Judge  Jenkins  in  his  opinion  said:  "It  is  said  that 
this  legislation  by  Congress  is  without  the  power  of 
Congress  ;  that  it  is  unconstitutional  ;  that  it  seeks  to 
establish  religious  tests.  I  cannot  concur  in  the  objec- 
tion. Legislation  with  respect  to  the  first  day  of  the 
week  has  nothing  to  do  with  the  matter  of  religious 
tests,  or  the  compulsion  of  a  particular  religious  belief 


Sunday  in  the  Constitution.  323 

or  service.  It  is  founded  upon  the  necessities  of  the 
human  race,  as  taught  hy  experience,  the  needed  rest 
which  human  beings  require  from  the  avocations  of  six 
days'  labor  ;  and  it  is  justified  by  that  experience  out- 
side of  and  irrespective  of  any  question  of  creed  or 
any  question  of  rehgion,  and  all  the  laws  seek  to 
do — the  laws  of  the  several  States,  which  have  ex- 
isted almost  from  the  existence  of  the  States — is  to 
provide  for  that  needed  rest,  and  to  provide  for  non- 
interruption  in  that  rest  and  in  such  religious  services 
in  which  any  citizen  may  choose  to  indulge.  It  is 
not  an  imposition  upon  any  one  of  compulsion  in  re- 
spect to  religious  belief,  or  in  respect  to  attendance  at 
church.  It  provides  simply  for  the  protection  and  for 
the  peace  of  those  who  may  choose  to  attend  church, 
that  the}'  shall  not  be  interrupted  b\-  labor  on  that  day. ' ' 
The  defendant  in  his  appeal  to  the  Circuit  Court  of 
Appeals  abandoned  his  plea  that  the  act  of  Congress, 
August  5,  1892,  requiring  that  the  Exposition  should 
be  closed  on  Sundays,  was  "  repugnant  to  the  Constitu- 
tion of  the  United  States."  Justice  Fuller  in  his  state- 
ment of  the  case  said  :  "  On  the  14th  of  June  the 
corporation,  defendant  below,  appellant  here,  applied 
to  the  Circuit  Court  for  leave  to  amend  its  answer, 
which  was  granted,  and  the  answer  amended  by  strik- 
ing out  the  words,  '  ayid  repugnant  to  tlie  Co7istitutio7i 
of  the  United  States'  from  the  paragraph  heretofore 
quoted."  ' 

'  United  States  v.  World's  Columbian  Exposition  ct  al. 
Circuit  Court,  N.  D.,  Illinois,  June  8,  1893.  Federal  Reporter, 
vol.  56,  pp.  630-653. 

World's  Columbian  Exposition  et  al.  v.  United  States,  Circuit 
Court  of  Appeals,  Seventh  District,  Jul}-  26,  1893.  Ibid.,  pp.  654- 
675. 


324  S7inday  in  the  Common  Law. 

The  Circuit  Court  of  Appeals  took  into  consideration 
no  facts  but  those  bearing  upon  the  question  of  the 
jurisdiction  of  the  Circuit  Court  in  the  case  as  a  court 
of  equity,  and  decided  no  other  question.  It  decided 
only  that  the  Circuit  Court  had  no  jurisdiction  in  the 
case  as  brought  before  it  by  the  United  States,  and  that 
its  action  thereon  was  therefore  void.  It  appears, 
however,  that  the  defendant  by  his  amended  appeal 
conceded  that  the  enforcement  of  the  law  of  the  United 
States,  requiring  the  gates  of  the  World's  Fair  to  be 
closed  on  Sunday,  could  not  be  successfully  resisted  in 
the  courts  on  the  plea  that  such  a  law  was  "  repugnant 
to  the  Constitution  of  the  United  States,"  and  therein 
conceded  the  correctness  of  the  opinion  of  the  Circuit 
Court  which  pronounced  the  law  in  question  to  be 
Constitutional. 


CHAPTER  XV. 

SUNDAY  IN  THE  COMMON  LAW, 

The  supposed  principle  that  all  restraint  of  action  on 
Sunday  is  based  on  the  purely  secular  consideration  of 
the  peace  and  good  order  of  society,  cannot  possibl}^ 
apply  to  the  common  law  restriction,  which  makes 
Sunday  a  dies  non  juridiais,  so  that  no  valid  judicial 
act  can  be  performed  on  that  day  excepting  in  cases  of 
extreme  necessit}-.  In  the  case  of  Scammon  v.  The 
City  of  Chicago,  (40  Illinois  Reports,  North,  p.  146 
April,  1866,)  legal  process  had  been  instituted  to  con- 
demn certain  lots  for  the  failure  to  pay  an  assessment 
for  paving  a  street,  notice  of  which  is  required  by  the 
statute  to  be  given  by  six  days'  publication  in  the  cor- 


Sunday  in  the  Common  Law.  325 


poration  paper.  In  this  case,  publication  on  Sunday 
in  the  Chicago  Tribune,  was  one  of  the  six  da3-s.  The 
Supreme  Court  said  :  "  At  common  law  Sunday  is,  in 
legal  phrase,  dies  Jionjuridiais.  No  valid  j  udicial  pro- 
ceeding can  be  had  upon  that  day.  If  the  service  of 
civil  process  would  be  invalid  on  Sunday,  it  necessarily 
follows  that  a  publication  of  this  notice  on  Sundaj-,  if 
the  law  required  but  one  publication,  would  be  equally 
invalid  ;  and  the  same  rule  must  be  applied  to  the 
present  case,  in  which  the  Sunday  publication  must  be 
counted  to  make  out  the  requisite  number.  The  no- 
tice stands  in  the  place  of  process.  To  permit  it  to 
be  given  on  Sunday  is  against  the  spirit  and  policy 
of  our  law." 

In  the  case  of  Thomas  v.  Hinsdale  et  al.,  Myers 
came  to  Hinsdale's  office,  who  was  an  acting  Justice 
of  the  Peace,  early  in  the  morning  on  Sunday,  and 
made  affidavit  for  attachment  against  Harriet  C. 
Thomas.  The  Justice  of  the  Peace  issued  the  writ, 
and  appointed  McDonough  a  constable  to  execute  it. 
Mrs.  Thomas  brought  action  for  trespass,  which  was 
not  sustained  by  the  lower  court.  The  Supreme  Court, 
Breese  delivering  the  opinion,  decided  that  "  the  magis- 
trate performed  an  act  the  law  gave  him  no  authority 
to  perform.  McDonough  executed  the  writ,  having  no 
authority  whatever  to  execute  it.  No  justification  is 
shown,  nor  can  be.  The  judgment  is  reversed,  and  the 
cause  remanded  for  further  proceedings  consistent  with 
this  opinion."  ' 

In  this  case  it  may  be  said  that  the  exeadion  of  the 

writ  might  disturb  the  peace  and  good  order  of  society, 

but  it  was  issuing  the  writ  on  Sundaj'  which  made  the 

execution  of  it  void  of  authority, — an  act  done  in  the 

'  78.     Illinois  Reports,  Freeman,  p.  259. 


J 


26  Sunday  in  the  Common  Law. 


privacy  of  the  Justice's  office  and  which  could  not  dis- 
turb any  Christian  in  his  worship,  pubHc  or  private, 
any  more  than  could  the  making  of  a  contract  in  the 
same  office. 

In  the  case  of  Baxter  v.  The  People,  Baxter  was  tried 
for  murder.  The  jur}^  brought  in  their  verdict  on  Sun- 
day. The  court  received  the  verdict,  and  pronounced 
judgment,  sentencing  Baxter  to  be  hanged.  The  Su- 
preme Court  of  Illinois  said  [3  Oilman,  368,  Caton,  J., 
delivering  the  opinion,  December,  1846]  :  "  That  courts 
have  no  right  to  pronounce  a  judgment,  or  do  any  other 
act  strictly  judicial  on  Sunday,  unless  expressly  au- 
thorized by  statute,  seems  too  well  settled  to  admit  a 
doubt  by  the  decisions  in  England  and  in  this  country. 
It  appears  that  anciently,  among  the  Christians,  courts 
did  sit  on  Sunday,  but  by  a  canon  of  the  church  made 
in  the  year  517,  this  was  prohibited,  and  that  rule  seems 
to  have  been  adopted  into  the  common  law  and  may  be 
considered  well  settled.  ...  The  question  seems 
to  have  been  frequently  before  the  English  courts,  and 
the  courts  of  most  of  the  States  of  the  Union  ;  and  the 
decisions  are  very  uniform,  that  a  judgment  cannot  be 
entered  of  record  on  Sunda5\  The  cases  all  show  that 
a  judgment  entered  of  record  on  Sunday  is  not  only 
erroneous  but  void.  But  although  the  law  seems  to  be 
well  settled  that  a  judgment  cannot  be  entered  of  rec- 
ord on  Sunday,  yet  I  think  it  equally  well  settled  that 
the  verdict  of  a  jury  may  be  entered  of  record  on  Sun- 
day. We  think  the  authorities  clearly  establish  that 
when  a  cause  is  submitted  to  the  jury  before  twelve 
o'clock  on  Saturday  night,  the  verdict  of  the  jury  may 
be  received  on  Sunday,  but  that  is  not  a  judicial  day 
for  rendering  any  judgment  ;  and  if  it  attempt  to  ren- 
der a  judgment,  still  in  law  it  would  be  no  judgment 


Sunday  in  the  Common  Law.  327 

but  absolutel}'  void,  and  will  be  so  declared  and  may 
be  reversed  by  this  court, — not  that  such  reversal  will 
take  from  it  any  force  or  vitality,  for  it  never  had  any, 
not  having  been  rendered  by  a  court  having  authority 
to  render  an}-  judgment  whatever  at  that  time. 
Suppose,  after  this  verdict  had  been  received,  the  cause 
had  been  continued  to  the  next  term  for  judgment  and 
the  court  adjourned  ;  and  that  sometime  during  vaca- 
tion and  without  appointing  a  special  term,  through 
some  misapprehension,  the  judge  had  opened  court  and 
rendered  judgment ;  such  a  judgment  would  have  been 
a  nullity,  but  no  more  so  than  this."  Koerner,  J.,  dis- 
sented, holding  that  as  under  the  statute  of  Illinois  the 
jun.-  is  made  judge  of  both  the  law  and  the  facts,  the 
verdict  of  the  jiu"y  was  a  judicial  act,  and  that  it,  as 
well  as  the  judgment  of  the  court,  w^as  void. 

Xow  taking  the  history  of  the  common  law  require- 
ment as  it  is  given  in  this  case,  can  it  be  maintained 
that  no  religious  reason,  motive,  or  consideration  is  to 
be  found  in  our  legal  regulations  of  the  obser^-ance  of 
Sunday,  that  those  regulations  are  based  wholly  on 
temporal  considerations,  nothing  being  prohibited  but 
what  disturbs  the  peace  and  good  order  of  society  ? 
Would  the  rendering  of  a  judgment  by  a  court  on  Sun- 
day disturb  the  peace  and  good  order  of  society,  more 
than  the  rendering  of  a  verdict  by  a  jun*  ?  Is  the  lat- 
ter permitted  because  it  does  not  disturb  the  public  peace, 
and  for  no  other  reason  ?  Is  the  former  prohibited  be- 
cause it  does  disturb  the  public  peace,  and  for  no  other 
reason  ? 


328  The  Oath. 

CHAPTER  XVI. 

THE  OATH. 

The  administration  of  the  oath  is  inconsistent  with 
the  assumption  that  the  government  cannot  be  deter- 
mined in  anything  it  does  or  requires  by  a  religious 
consideration.  Whatever  may  be  its  form, — whether 
putting  the  Bible  to  the  lips,  or  laying  the  hand  upon 
it,  or  the  lifting  up  of  the  hand  ;  whether  the  words 
"So  help  me,  God  "  be  omitted  or  not, — the  adminis- 
tration of  an  oath  is  a  religious  act.  The  whole  his- 
tory of  the  oath  proves  that  it  has  a  specifically  religious 
character.  Why  is  the  crime,  in  bearing  false  witness, 
the  violation  of  the  oath,  and  not  the  utterance  of  false- 
hood ?  Is  it  true  that  no  higher  sentiment  is  appealed 
to  than  regard  for  the  truth  ?  If  the  oath  administered 
to  a  witness  b}'  a  court  is  entirely  destitute  of  religious 
character,  it  is  nothing  more  than  a  contract  made  by 
the  witness  with  the  court  or  with  the  body-politic  as 
represented  by  the  court,  to  tell  the  truth.  Why  such  a 
contract,  and  why  punish  the  false  witness  for  violation 
of  the  contract,  and  not  for  the  falsehood  ?  When  a 
man  comes  into  the  court-room  he  is  not  required  to 
take  an  oath,  or  make  a  contract  to  respect  the  court  ; 
yet  he  will  be  punished  for  contempt.  Why  would  it 
not  be  enough  to  punish  the  false  witness  for  uttering 
falsehood,  making  that  act  the  crime,  as  the  act  of  con- 
tempt is  the  crime  in  the  other  case.  The  oath  differs 
essentially  from  a  contract ;  it  is  not  even  a  contract 
with  the  Divine  Being,  but  is  an  appeal  to  Him  who 
has  said  "  Thou  shalt  not  bear  false  witness  against 
thy  neighbor,"  to  take  cognizance  of  and  punish  aii}^ 
departure  from  the  truth  in  the  act  of  witness-bearing. 


Restriction  of  Frinction.  329 

Were  there  among  the  people  no  belief  in  God,  were 
the  oath  divested  of  all  religious  character,  no  oath 
ought  to  be  or  would  be  required.  The  oath  is  esseu- 
tiallv  religious. 


CHAPTER  XVII. 

RESTRICTION   OF    FUNCTIOX   NOT   RENUNCIATION. 

That  the  government  should  restrict  to  the  narrow- 
est limits  the  exercise  of  its  function,  as  Christian  ; 
that  it  should  decline  to  engage  in  the  work  of  propa- 
gating, or  even  to  adopt  any  positive  measures  for  the 
fostering  of  Christianity  ;  that  it  should  carefully  avoid 
an}'  coercion  of  the  conscience  of  the  unbeliever,  not 
requiring  of  him  the  performance  of  a  religious  duty 
when  it  requires  of  him  the  observance  of  a  legally 
established  Christian  ordinance,  allowing  him  the  larg- 
est libert}-  of  action  compatible  with  the  rights  of  Chris- 
tian people  and  the  good  order  of  societ}-,  is  explicable. 
Motive  enough  for  so  doing  can  be  found  in  considera- 
tions of  reasons  and  justice.  But  that  the  government 
of  a  people  who  are,  in  overwhelming  majorit}-.  Chris- 
tian, should  go  farther  than  that,  and  divest  itself  of 
all  Christian  character,  would  be  inexplicable.  There 
would  be  no  practical  necessity  for  so  doing  ;  nor  even 
a  theoretical  necessit}-,  except  upon  the  part  of  a  few 
unbelievers  who  would  hardly  claim  that  the  theory 
of  the  few  ought  to  prevail  against  that  of  the  many. 

There  is  no  doubt  that  the  restriction  of  the  religious 
function  of  the  government  thus  far  made  will  be  at- 
tributed by  man\'  to  the  force  of  a  supposed  principle, 
which  as  3-et  lies  beneath  the  public  consciousness,  but 
which  is  struggling  upward,    and  will  in  the  natural 


330  Demand  for  Neutrality. 

course  of  evolution  finally  attain  unto  full  realization 
in  the  entire  suppression  of  that  function.  But  it  is  to 
be  remembered  that  the  most  rigid  restriction  does  not 
always  and  necessarily  imply  a  latent  tendency  to  sup- 
pression. There  is  no  restriction  which  municipal 
governments  enforce  more  rigidly  than  that  which  for- 
bids the  encroachment  of  buildings  upon  the  street 
line  ;  even  the  projection  of  the  capital  of  a  column, 
or  a  cornice  beyond  that  line,  is  prohibited.  But  it 
would  be  very  absurd  to  interpret  that  restriction  as 
implying  a  latent  opposition,  which  may  be  expected 
to  work  out  to  the  final  suppression  of  all  building. 
Equally  absurd  is  it  to  infer  the  existence  of  a  similar 
opposition  from  the  limitations  the  government  has  put 
upon  the  exercise  of  its  Christian  function.  The  prin- 
ciples of  religious  liberty  are  the  open  highways  in  the 
city  of  God  on  earth.  Christian  laws  are  the  walls  of 
the  buildings  that  stand  on  its  boundary  lines.  Neither 
can  be  permitted  to  encroach  upon  the  other,  but  to  the 
detriment  of  the  whole. 


CHAPTER   XVIII. 

the;  dkmand  for  neutrality. 

The  demand  which  is  now  being  made  for  the  re- 
moval of  every  trace  of  Christian  character  from  our 
civil  government  is  destitute  of  foundation  either  in 
reason  or  justice,  but  the  plea  made  by  the  unbeliever 
for  that  removal  is  plausible.  He  says  that  what  he 
asks  for  is  only  that  the  government  shall  be  neutral 
on  the  subject ;  neither  for  nor  against  Christianity, 
or  any  other  religion  ;  only  the  omission  of  all  require- 


Demand  for  Neutrality.  331 

ments  based  upon  Christianity.  In  that  case,  he  sa}'S, 
Christian  people  of  course  would  not  be  required  to  pay 
taxes  for  the  support  of  what  was  contran.'  to  their  con- 
victions and  what  thej-  believed  to  be  pernicious. 
Whereas  in  the  case,  as  it  now  stands,  that  is  just 
what  the  unbeliever  is  compelled  to  do. 

Plausible  as  this  plea  is,  it  will  be  seen  at  once  that 
a  ver}-  positive  action  would  have  to  be  taken  in  order 
to  reach  the  negative  result.  Christianity  holds  now, 
as  it  has  held  from  the  beginning,  a  place  in  the  law 
of  the  land,  and  it  would  have  to  be  dislodged  before 
the  supposed  negative  position  could  be  reached. 
Furthermore,  the  action  would  of  course  take  its  sig- 
nificance from  the  reasons  upon  which  it  was  based. 
Christian  people,  having  abated  all  injustice  arising 
from  the  exercise  of  the  Christian  function  of  their 
government,  can  have  no  reason  for  desiring  the  dis- 
lodgement  in  question  ;  and  the  unbeliever,  having  re- 
ceived the  abatement  of  all  injustice,  can  have  none 
but  a  theoretical  reason  for  desiring  the  dislodgement  ; 
which  reason  is  that  Christianitj-  is  a  superstition,  and 
like  all  other  superstitions  false  and  pernicious. 

The  term  sect  is  commonly  applied  to  the  various 
schools  into  which  the  adherents  of  a  religion  are 
di\aded.  It  is  a  familiar  term  as  applied  to  the  various 
denominations  of  Christians,  but  in  a  broad  view  unbe- 
lievers as  a  class  must  be  regarded  as  a  sect.  Their 
dogmas  on  the  subject  of  religion  are  well  defined,  and 
they  are  divided  into  sects  among  themselves  ;  — Mate- 
rialists denying  the  existence  of  mind  or  spirit,  either 
finite  or  infinite ;  Pantheists  denying  the  personality 
of  the  all-pen'ading  source  of  all  existence ;  and  Ag- 
nostics den^-ing  that  the  primal  being,  whose  existence 
may  be  admitted,  can  be  known.     The  doctrines  of 


332  Demand  for  Neutrality. 

each  sect  are  not  only  well  defined,  but  like  the  doc- 
trines of  the  Christians,  are  made  to  rest  on  an  elabo- 
rate sub-structure  of  philosophy  and  logic.  When 
facing  Christianity  all  of  these  sects  agree  in  the 
negation  of  its  truths,  and  taking  all  parties  to  the 
question  into  view  they  are  to  be  reckoned  as  one  sect. 
They  are  united  in  organizations  for  the  purpose  of 
maintaining  and  propagating  their  doctrines,  to  the 
overthrow  of  what  they  regard  as  the  false  doctrines 
of  Christianit3^ 

The  whole  controversy  lies  in  the  domain  of  the  re- 
ligious feelings  ;  and  although  they  are  contending  for 
irreligion,  it  is  very  plain  that  they  are  not  destitute 
of  those  feelings  of  admiration  for  the  true,  the  beauti- 
ful, and  the  good,  which  in  Christians  are  expressed  in 
worship.  They  are  worshippers.  Truth,  or  reason, 
or  law,  or  humanity,  or  nature  is  the  object  of  their 
worship,  a  worship  that  leads  naturally  to  some  sort  of 
personification.  That  scene  enacted  in  the  Cathedral 
of  Notre-Dame  in  Paris,  November  26,  1793,  when 
Damoiselle  Candeille  of  the  opera  was  borne  on  a  throne 
upon  the  shoulders  of  men  to  the  altar,  the  worship  of 
the  Goddess  of  Reason  supplanting  the  worship  of  the 
blessed  Virgin,  cannot  be  easily  forgotten.  And  with 
that  spectacle  before  our  eyes  it  can  hardly  be  denied 
that  atheists  are  possessed  of  those  feelings  which  natu- 
rally express  themselves  in  worship. 

Seeing  then  that  unbelievers  possess  all  the  specific 
characteristics  of  a  sect ;  definite  doctrines  upon  the 
subject  of  religion ;  organization  for  the  defence  and 
propagation  of  those  doctrines  ;  and  even  in  some  pro- 
per sense  a  worship,  they  are  to  be  regarded  in  this 
controversy  as  a  sect,  and  the  demand  they  are  making 
of  the  government  is  to  be  regarded  as  nothing  else 


Demand  for  Neutrality.  333 

than  the  establishment  of  their  sectarian  doctrines. 
Mr.  Francis  E.  Abbot  in  .speaking  before  the  National 
Reform  Association  at  its  meeting  in  Cincinnati,  Feb- 
ruar}-  i,  1872,  making  a  protest  against  the  proposed 
religious  amendment  of  the  Constitution  of  the  United 
States,  which  that  association  was  organized  to  secure, 
said,  "  I  respect  this  movement  very  sincerely.  It 
seems  to  me  to  have  the  logic  of  Christianity,  behind 
it,  and  if  I  were  a  Christian,  if  I  believed  in  Chris- 
tianity, I  do  not  see  how  I  could  help  taking  my  stand 
b}'  30ur  side."  ' 

It  is  fair  to  infer  from  this  declaration  that  what  the 
members  of  that  association  were  endeavoring  to  accom- 
plish for  their  belief,  he  was  endeavoring  to  accomplish 
for  his  belief,  that  is,  to  make  it  the  supreme  ruling- 
principle  of  the  government.  As  they  were  demanding 
that  the  government  should  be  bound  to  violate  no 
principle  of  Christianity,  so  he  was  demanding  that  it 
should  be  bound  to  violate  no  principle  of  atheism. 
It  is  fair  to  infer  that  the  two  parties  differed  onl)'  as  to 
which  should  be  established  in  the  Constitution,  Athe- 
ism or  Christianit}'.  In  the  Index,  the  organ  of  the 
Liberal  League,  published  b}-  Mr.  Abbot,  for  January 
4,  1873,  the  demands  of  the  League  were  published  as 
follows  : 

"  I.  We  demand  that  churches  and  other  ecclesias- 
tical property  shall  no  longer  be  exempt  from  just 
taxation. 

"  2.  We  demand  that  the  employment  of  chaplains 
in  Congress,  in  State  legislatures,  in  the  navy  and 
militia,  and  in  prisons,  asylums,  and  all  other  institu- 
tions supported  by  public  money,  shall  be  discontinued. 

' '  3.  We  demand  that  all  public  appropriations  for 
'  Proceedings,  p.  33. 


334  Deinafid for  Neutrality. 

educational  and  charitable  institutions  of  a  sectarian 
character  shall  cease. 

"  4.  We  demand  that  all  religious  services  now  sus- 
tained by  the  government  shall  be  abolished,  and 
especially  that  the  use  of  the  Bible  in  the  public  schools, 
whether  ostensibly  as  a  text-book,  or  avowedly  as  a 
book  of  religious  worship,  shall  be  prohibited. 

"  5.  We  demand  that  the  appointment  by  the  Presi- 
dent of  the  United  States  or  by  the  Governors  of  the 
various  States  of  all  religious  festivals  and  fasts  shall 
wholly  cease. 

"6.  We  demand  that  the  judicial  oath  in  the  courts 
and  in  all  other  departments  of  the  government  shall 
be  abolished,  and  that  simple  affirmation  under  the 
pains  and  penalties  of  perjury  shall  be  established  in 
its  stead. 

"  7.  We  demand  that  all  laws,  directly  or  indirectly 
enforcing  the  observance  of  Sunday  as  the  Sabbath, 
shall  be  repealed. 

"  8.  We  demand  that  all  laws  looking  to  the  enforce- 
ment of  "Christian  "  morality  shall  be  abrogated,  and 
that  all  laws  shall  be  conformed  to  the  requirements  of 
natural  morality,  equal  rights,  and  impartial  libertj'. 

"9.  We  demand  that,  not  only  in  the  Constitution 
of  the  United  States  and  of  the  several  States,  but  also 
in  the  practical  administration  of  the  same,  no  privilege 
or  advantage  shall  be  conceded  to  Christianit}^  or  any 
other  religion  ;  that  our  entire  political  system  shall  be 
founded  and  administered  on  a  purely  secular  basis, 
and  that  whatever  changes  shall  prove  necessary  to  this 
end  be  consistentl}^  unflinchingly,  and  promptly  made." 

Upon  what  ground  does  the  Liberal  League  make 
these  demands  ?  Upon  the  ground  that  under  the  gov- 
ernment on  its  present  basis,  and  as  it  is  now  adminis- 


Detnaiid for  Neutrality.  335 

tered,  they  are  deprived  of  the  Hberty  of  belief  and  of 
acting  in  accordance  with  their  belief; — on  the  ground 
that  the}^  are  required  to  do  anything  which  would 
impl}-  on  their  part  a  belief  in  the  doctrines  of  Chris- 
tianity ; — on  the  ground  that  they  are  subject  to  any 
hardships  that  are  not  necessarily  incident  to  the  rule 
of  the  majority  ?  That  cannot  be,  for  there  is  no  such 
ground.  It  has  already  been  removed  ;  or  if  a  vestige 
of  it  remain  Christians  will  join  with  them  in  securing 
its  speedy  removal. 

The  demand  as  now  made  can  be  only  on  the  giDund 
that  the  doctrines  of  Christianit}^  are  false  and  the  doc- 
trines of  atheism  are  true.  The  demand  of  the  unbe- 
liever is  that  the  government  shall  adopt  and  act  upon 
the  doctrines  which  he  believes  to  be  true.  That  this 
is  the  demand,  which  is  disguised  under  the  plea  of 
neutrality,  may  be  made  plain  by  a  simple  illustration. 

Certain  ver}^  respectable  and  eminent  philologists  de- 
sire a  reform  in  the  orthography  of  the  English  lan- 
guage ;  among  other  things  the  omission  of  all  silent 
letters,  such  as  the  a  in  hear,  dear,  fear,  etc.;  the  e  in 
care,  dare,  w^ear,  etc.  They  claim  that  the  adoption 
of  the  reform  would  save  in  the  aggregate  an  immense 
amount  of  labor  and  money  to  the  public  generally, 
and  an  immense  amount  of  nervous  energy  to  the 
pupils  in  our  vSchools.  Those  who  prefer  the  old  mode 
of  spelling  hold  that  the  letters  alleged  to  be  superflu- 
ous serve  as  diacritical  marks,  and  serve  for  that  pur- 
pose as  well  as  any  marks  that  could  be  invented  to 
take  their  place.  They  maintain  that  the  difference 
between  them  and  the  reformers  is  only  a  difference  in 
tenet  or  doctrine  as  to  diacritical  marks.  Now  should 
the  government,  beguiled  by  the  plea  of  the  reformers 
that  all  they  ask  is  omission,  order  the  omission  of 


2,;^6  Demand yhr  Neutrality. 

those  letters  in  all  its  documents  and  records  and  in  all 
the  books  used  in  the  public  schools,  who  does  not  see 
that  such  an  order  would  involve  the  rejection  of  the 
tenet  of  the  majority  and  the  establishment  of  the  tenet 
of  the  minorit3^  This  is  a  case  in  which  the  remark 
of  Justice  Appleton  of  Maine  in  the  case  of  Donahue 
V.  Richards,  that  "The  right  of  negation  is  in  its 
operation  equivalent  to  the  right  of  proposing  and  es- 
tablishing," is  true.  The  omissions,  negations,  and 
prohibitions  demanded  by  the  unbeliever  would  be 
equivalent  to  the  establishment  of  his  tenets.  Such 
establishment  over  a  population  that  is  almost  wlioll}' 
Christian  would  be  a  flagrant  injustice. 

Another  simple  illustration  will  serve  to  show  that 
acceding  to  the  demand  in  question,  instead  of  securing 
justice,  would  inflict  injustice  ;  instead  of  securing  the 
rights  of  conscience,  would  trample  on  those  rights. 

Suppose  that  a  vegetarian  becomes  a  member  of  a 
boarding  club  which  has  always  used  meats,  and  that 
he  desires  the  club  to  change  its  policy  and  exclude 
meats  from  the  table.  He  might  plead  that  all  he  asks 
for  is  omission,  negative  action  ;  and  that  to  secure  no 
more  than  what  is  simply  just.  He  pays  an  equal 
share  with  the  rest  into  the  common  fund,  and  part  of 
his  money  goes  to  pay  for  provisions  which  he  does  not 
use.  Moreover,  his  conscience  is  involved  in  the  mat- 
ter ;  he  has  conscientious  scruples  against  eating  the 
flesh  of  animals  ;  while  the  other  members  have  no 
conscientious  scruples  against  the  use  of  vegetables. 
Plausible  as  this  plea  of  conscientious  scruple  ma}^ 
.seem,  it  will  appear  upon  examination  to  be  an  adroit 
misrepresentation  of  the  other  side  of  the  case.  They 
have  no  conscientious  .scruples  against  the  use  of  vege- 
tables,  but  they  have  conscientious  scruples   against 


Demand  for  Neutrality.  2)Z7 

subsisting  on  vegetables  alone.  Why  does  he  use  only- 
vegetables  ?  Partly  because  he  believes  it  to  be  a  duty 
to  keep  his  body  in  the  fullest  vigor  possible.  They 
hold  the  same  belief  for  themselves.  He  holds  that  his 
health  would  suffer  detriment  from  the  use  of  animal 
food  ;  and  they  hold  that  their  health  would  suffer  detri- 
ment from  the  disuse  of  it.  Conscience  is  involved  as 
much  on  the  one  side  as  on  the  other.  The  onl}-  question 
in  the  case  therefore  is  who  shall  rule, — the  manj^  over 
the  one,  or  the  one  over  the  many  ?  The  rule  of  the 
many  over  the  one  is  democracy- ;  the  rule  of  the  one 
over  the  many  is  despotism.  If  he  is  permitted  to 
remain  in  the  club,  to  enjoy  all  its  privileges  and  ad- 
vantages, and  is  not  compelled  to  partake  of  animal 
food;  he  has  no  just  ground  of  complaint  if  the  club 
refuse  to  change  its  old  established  principles  so  as  to 
conform  with  his  peculiar  views.  He  has  all  the 
rights  to  which  in  those  circumstances  he  is  entitled. 

There  will  undoubtedly  be  more  or  less  of  hardship 
incident  to  the  rule  of  the  majorit}',  as  evil  attends  all 
earthly  things  ;  but  hardship  is  not  always  injustice. 
The  Quaker  is  compelled  to  pay  taxes  for  the  sup- 
port of  a  government  that  keeps  an  army  and  navy, 
inflicts  capital  punishment,  carries  on  war,  and  admin- 
isters oaths.  Those  who  believe  that  the  administra- 
tion of  medicines  is  pernicious  are  compelled  to  paj^ 
taxes  for  the  support  of  physicians  in  government  em- 
ploy who  administer  medicines.  Spelling  reformers 
are  compelled  to  pay  taxes  for  the  support  of  schools 
in  which  a  system  of  orthography,  to  which  they  are 
opposed,  is  taught.  A  man,  who  has  neither  horse 
nor  carriage,  but  does  all  his  travelling  by  railroad,  is 
compelled  to  pay  his  fare  on  the  railroad  and  also  to 
pay  taxes  to  keep  up  the  public  roads  and  bridges.     The 


2,2,^  Demand  for  Neutrality. 

man  who  furnishes  his  own  water  and  light  is  compelled 
to  pay  taxes  for  building  the  city  waterworks  and  gas 
works.  The  parent  who  has  no  children  to  go  to 
school,  or  who  prefers  to  send  his  children  to  a  private 
school,  is  compelled  to  pay  tax  for  the  support  of  the 
public  schools.  The  Jew  and  the  member  of  those 
Christian  denominations  which  keep  the  seventh  da}^ 
of  the  week  sacred  are  compelled  to  pay  taxes  for  the 
support  of  a  government  which  will  not  allow  them  to 
have  a  cause  heard  in  court,  or  to  have  a  legal  process 
issued,  or  a  petition  presented  to  the  legislature,  or  to 
have  business  done  at  the  bank,  or  to  enforce  the  pay- 
ment of  a  debt  on  the  first  day  of  the  week. 

These  hardships  are  unavoidable  incidents  to  all  social 
organization  ?  They  furnish  no  valid  reason  for  taking 
the  rule  from  the  majority  and  giving  it  to  the  minority. 
Nor  would  such  transfer  diminish  the  hardships :  it 
would  only  increase  them.  When  these  hardships  are 
reduced  to  the  least  possible  amount  and  are  made  to 
fall  upon  the  least  possible  number  of  persons ;  and 
when  no  one  is  compelled  to  do  what  his  conscience 
forbids,  there  can  be  no  just  ground  for  complaint. 
When  the  Quaker  is  not  compelled  to  bear  arms,  or  to 
take  an  oath,  he  has  all  the  respect  shown  for  his  pecu- 
liar views  that  he  has  a  right  to  demand.  When  on 
the  ground  that  he  is  conscientiously  opposed  to  war 
and  that  he  pays  taxes  for  the  support  of  the  govern- 
ment, he  goes  farther  and  demands  that  the  govern- 
ment be  neutral  on  the  subject  of  war  ;  his  demand  is 
not  for  the  securing  of  his  rights,  but  for  the  establish- 
ment of  his  doctrines.  His  grievance  is,  not  that  he  is 
compelled  to  do  anything  that  his  conscience  forbids, 
but  that  all  other  people  are  not  compelled  to  yield 
their  conscientious  convictions  to  his  ;    it  is  that   the 


Demand  for  Neutrality 


majority  conduct  the  affairs  of  the  government  in  ac- 
cordance with  their  own  views  of  what  is  right,  and 
are  not  compelled  to  conduct  those  affairs  in  accordance 
with  his  views ;  or,  in  other  words,  that  he  is  not 
allowed  to  wield  the  power  of  a  despot.  He  has  a 
perfect  right  to  his  opinion  ;  a  perfect  right  to  advocate 
it ;  to  endeavor  to  persuade  his  fellow-citizens  to  his  way 
of  thinking  ;  and  if  he  should  succeed  in  persuading 
a  majority  of  them,  he  has  a  right  to  have  the  govern- 
ment administered  in  accordance  with  his  views  ;  but, 
until  that  be  done,  he  has  no  right  to  keep  up  an  outcry 
of  injustice,  or  to  be  obstructive  in  his  action.  To  use 
an  illustration  of  Lord  Brougham.  If  he  should  come 
into  a  court  of  justice  and  say  that  his  conscience  not 
onh-  precluded  him  from  taking  an  oath,  but  precluded 
him  also  from  giving  evidence  which  in  the  existing 
state  of  the  laws  might  bring  a  fellowman  to  capital  pun- 
ishment, the  answer  he  would  receive  would  be  this : 
"  Sir,  the  legislature  is  the  only  judge  of  the  necessit}' 
of  taking  away  a  man's  life  ;  and  neither  your  con- 
science nor  j-our  notions  of  jurisprudence  must  stand  in 
the  way  of  justice." 

In  the  case  of  Simons  Ex.  :•.  Gratts,  2  Pennsyl- 
vania, 412,  Levi  Philips,  the  only  plaintiff  attending 
to  the  preparation  of  the  case,  made  deposition,  stating, 
"  That  he  had  scruples  of  conscience  against  appearing 
in  court  to-day  [Saturday]  and  attending  to  an}'  secular 
business,  and  that  he  believes  that  his  presence  and  aid 
will  be  material  in  the  progress  of  the  cause."  His 
honor  overruled  the  objections  of  the  plaintiff  and  or- 
dered on  the  cause. 

On  appeal  the  Supreme  Court  said  (Gibson,  C.  J., 
delivering  the  opinion)  ;  ' '  The  religious  scruples  of  per- 
sons concerned  with  the  administration  of  justice  will 


340  Demand  for  Neutrality. 

receive  all  due  indulgence  that  is  compatible  with  the 
business  of  the  government  ;  and  had  circumstances 
permitted  it,  this  cause  would  not  have  been  ordered  for 
trial  on  the  Jewish  Sabbath.  But  when  a  continuance, 
for  conscience'  sake,  is  claimed  as  a  right  and  at  the 
expense  of  a  Term's  delay,  the  matter  assumes  a  differ- 
ent aspect. 

"  It  never  has  been  held,  except  in  a  single  instance, 
that  the  course  of  justice  ma}'  be  obstructed  b}'  any  scru- 
ple or  obligation  whatever.  The  sacrifice  that  ensues 
from  conscientious  objection  to  the  performance  of  a  civil 
duty  ought,  one  would  think,  to  be  on  the  part  of  him 
whose  moral  and  religious  idiosyncrasy  makes  it  nec- 
essary ;  else  the  denial  of  the  lawfulness  of  capital 
punishment  would  exempt  a  witness  from  testifying  to 
facts  that  might  serve  to  convict  a  prisoner  of  murder  ; 
or  to  say  nothing  of  other  functionaries  of  the  law, 
excuse  the  sheriff  for  refjtsing  to  execute  one,  capitally 
convicted.  That  is  an  exemption  which  none  would 
pretend  to  claim  ;  yet  it  would  inevitably  follow  from 
the  principle  insisted  on  here.  Rightly  considered, 
there  are  no  duties  so  sacred  as  those  which  the  citizen 
owes  to  the  laws.  In  the  judicial  investigation  of  facts, 
the  secrets  of  no  man  will  be  wantonly  exposed,  nor 
will  his  principles  be  wantonly  violated.  But  a  respect 
for  these  must  not  be  suffered  to  interfere  with  that 
organ  of  the  government  which  has  more  immediatelj^ 
to  do  with  the  protection  of  person  and  property  :  the 
safety  of  the  citizen  and  the  very  existence  of  society 
require  that  it  should  not.  That  every  other  obliga- 
tion shall  yield  to  that  of  the  laws,  as  to  a  superior 
moral  force,  is  a  tacit  condition  of  membership  in  every 
society,  whether  lay  or  secular,  temporal  or  spiritual  ; 
because  no  citizen  can  lawfully  hold  communion  with 


Duties  of  the  State  as  Christian.        341 

those  who  have  associated  on  any  other  terms  ;  and 
this  ought  in  all  cases  of  collision  to  be  accounted  a 
sufficient  dispensation  to  the  conscience.  ...  I  am 
for  setting  aside  this  non-suit,  certainly  not  for  any 
supposed  interference  with  the  rights  of  conscience." 

The  case  of  the  Quaker  given  in  elucidation  of  the 
point  we  are  making,  it  is  hardly  necessary  to  saj^,  is 
altogether  hypothetical.  To  the  honor  of  the  highly 
respected  and  truly  conscientious  society  of  Friends, 
be  it  said,  that  they  keep  up  no  agitation,  make  no 
outcry  of  injustice,  and  are  not  persistently  obstructive 
to  those  measures  of  the  government  which  they  regard 
as  unrighteous.  Of  the  unbeliever,  however,  more  rest- 
less and  less  tolerant  than  the  quiet  and  amiable  Friend, 
it  is  doubtful  whether  so  much  can  be  truthfully  said. 

Christian  believers  can  have  no  motive  for  divesting 
their  civil  government  of  its  Christian  character. 

Unbelievers  can  offer  no  ground  in  reason  or  justice 
for  such  divestiture. 


CHAPTER   XIX. 

DUTIES   OF   THE   STATE   AS    CHRISTIAN, 

1st.  Not  to  Adopt  Positive  Measures  for  the 
Fostering'  of  Christianity. — At  the  close  of  the  sec- 
ond part  of  our  investigation,  we  arrived  at  the  con- 
clusion that  the  government  of  these  United  States  was 
necessarily,  rightfully,  and  lawfully  Christian.  In  Part 
III.  we  entered  upon  the  question  :  What  may  the 
government  do,  and  what  ought  it  to  do  in  its  Chris- 
tian character  ?  Our  first  answer  to  that  question  was 
a  negative  one,  viz.  :   That  it  was  no  part  of  the  proper 


342        Ditties  of  the  State  as  Christian. 

function  of  the  government  to  inculcate,  propagate,  or 
even  foster,  Christianity  ;  certain  special  cases  being 
excepted. 

We  have  been  considering  throughout  the  previous 
discussion  the  question  of  inculcating  and  propagating, 
but  have  given  no  special  consideration  to  the  question 
oi  fostering  Christianity.  Our  negative  answer  to  the 
latter  question  may  seem  to  be  a  step  too  far  in  the 
way  of  restriction  or  concession.  It  can  hardl}-  be  de- 
nied that  the  laws  against  cruelty  to  animals  are  in- 
tended to  foster  the  humane  sentiments  of  the  people, 
and  thereby  promote  the  public  welfare.  A  true  system 
of  ethics  will  concede,  to  the  animal,  rights  which  man 
is  bound  to  respect,  but  the  animal,  in  relation  with 
man,  does  not  possess  the  equal  rights  which  man  pos- 
sesses in  relation  with  his  fellowman.  Cruelty  to  the 
animal  is  not  a  crime  of  the  same  order  as  injury  to  the 
person  of  one  man  b}^  another. 

It  may  be  therefore  that,  like  blasphemy  and  Sunday 
desecration,  cruelty  to  animals  is  prohibited  only  to 
protect  the  citizens  against  nuisance,  and  the  good  or- 
der of  society  from  disturbance.  But  scarcelj-  an}-one 
denies,  and  almost  everyone  takes  satisfaction  in  be- 
lieving, that  the  laws  in  question,  whatever  other 
purpose  they  may  have  been  intended  to  serve,  were 
intended  mainly  to  foster  humane  sentiments  in  the 
breast  of  the  citizen. 

It  would  seem  inconsistent  therefore,  to  concede  to 
the  government  the  right  to  foster  humanity,  and  deny 
its  right  to  foster  Christianity,  especially  since  Chris- 
tianity includes  humanity,  as  the  whole  includes  the 
part,  or  the  genus  the  species.  If  the  right  in  the 
latter  case  be  granted,  it  is  to  be  remarked  that  the 
fostering  in  both  cases  is  confined  to  the  prohibition  of 


Djiiies  of  the  State  as  Christian.        343 

acts  which  are  of  the  character  of  nuisance  and  tend 
to  disturb  the  good  order  of  society.  It  may  be  doubted, 
however,  whether  an  act  of  outrageous  cruelty  to  an 
animal  perpetrated  in  seclusion  whereof  suflBcient  proof 
could  be  found,  would  escape  the  penalty  on  the  plea 
of  seclusion.  But  aside  from  this,  the  cases  are  not 
altogether  alike.  Difficulties  would  attend  the  exercise 
of  the  fostering  function  in  the  one  case  that  do  not 
attend  it  in  the  other.  Strong  religious  feeling  is  not 
so  prevalent  among  the  people  as  the  humane  feeling. 
Xo  one  denies  that  it  is  a  dutj-  to  be  humane  ;  while 
man}-  den}-  that  it  is  a  duty  to  be  Christian.  Besides, 
the  advocates  of  the  humane  treatment  of  animals  are 
not  divided  into  sects,  all  differing  in  opinion  as  to 
what  particular  form  of  humanity  ought  to  be  fostered  ; 
while  another  sect,  of  considerable  strength,  stands  in 
opposition  to  them  all,  aflBrming  that  humanity  is  a 
factitious  sentiment  which  interferes  with  the  law  of 
natural  selection  and  tends  to  prevent  the  survival 
of  the  fittest.  It  seems,  therefore,  that  as  a  matter  of 
practical  necessity,  if  not  of  principle,  the  exercise  of 
the  religious  function  of  the  government  should  be 
reduced  to  the  last  degree  consistent  with  a  proper  re- 
gard for  the  feelings,  convictions,  and  rights  of  Chris- 
tian people. 

Furthermore,  when  there  is  within  the  State  a  large 
and  well-organized  body,  which  has  for  its  special  ob- 
ject the  propagation  and  fostering  of  Christianity,  the 
natural  law  of  efficiency  in  all  organic  bodies — special- 
ization in  the  form  and  function  of  organs — would  j  us- 
tify  the  government  in  leaving  the  whole  work  of 
fostering  Christianity  to  the  Church, — at  least  the  use 
of  all  positive  measures  to  that  end.  The  government 
takes  knowledge  of  Christianity  as  an  organized  sys- 


344       Duties  of  the  State  as  Christian. 

tem,  not  as  an  abstraction,  an  imperium  in  imperio. 
Were  there  no  organized  Christian  church,  and  were 
the  people  Christian,  it  might  be  the  duty  of  the 
government,  not  only  to  foster,  but  to  inculcate  Chris- 
tianity, just  as  it  is  the  duty  of  the  lowest  animal  or- 
ganism to  use  any  and  every  part  of  its  body,  as  mouth, 
legs,  and  arms. 

It  may  be  remarked  that  if  the  government  abstain 
from  fostering  Christianity  while  it  does  foster  human- 
ity, there  is  all  the  more  ground  for  maintaining  that  it 
should  abstain  with  the  most  scrupulous  care  from  doing 
anything  adverse  to  Christianity.  If  the  case  were 
such  that  it  could  leave  the  fostering  of  humanity  to  an 
organization  better  fitted  than  itself  for  the  purpose,  it 
would  be  passing  strange  if  it  should  make  occasion 
of  that  fact  to  profess  itself  to  be  inhuman,  or  even 
neutral  ;  and  stranger  still  if  it  should  be  found  actu- 
ally fostering  inhumanity. 

In  accordance  with  the  principles  just  set  forth,  the 
State  ought  to  abolish  all  distinctions  between  minis- 
ters of  the  gospel  and  other  citizens  in  the  disqualifica- 
tions for  office.  Up  to  1846  the  Constitution  of  New 
York  contained  the  following  prohibition,  viz.: 

"  Art.  VII.  Sec.  4.  And,  whereas,  the  ministers  of  the 
gospel  are  by  their  profession  dedicated  to  the  service 
of  God  and  the  care  of  souls,  and  ought  not  to  be 
diverted  from  the  great  duties  of  their  function  ;  there- 
fore, no  minister  of  the  gospel  or  priest  of  any  denomi- 
nation whatsoever  shall  at  any  time  hereafter,  under 
any  pretence  or  description  whatever,  be  eligible  to  or 
capable  of  holding  any  civil  or  military  office  or  place 
within  this  State. ' ' 

The  Constitutions  of  eleven  other  States  have  con- 
tained similar  prohibitions.  These  disqualifications  were 


Duties  of  t lie  State  as  CJiristian.        345 

not  intended  to  operate  towards  a  divorce  of  Christianity 
from  the  State,  but,  as  is  expressly  stated,  to  more  fully 
secure  its  influence  for  the  benefit  of  the  State.  They 
were  no  more  intended  to  be  derogatory  to  Christianity 
than  the  provision  found  in  all  the  State  constitutions 
which  prohibits  anj'  member  of  Congress  or  other  per- 
son holding  office  under  the  United  States  being  a  mem- 
ber of  the  State  legislature  or  holding  any  other  office 
under  the  State,  was  intended  to  be  derogatory  to  the 
general  government.  In  both  cases  the  intention  was 
to  promote  efficienc}-  and  purity  in  office  by  requiring 
exclusive  devotion  to  its  duties.  The  disqualifications 
imposed  on  ministers  of  the  gospel  were  intended  to 
foster  Christianity  as  a  means  of  promoting  the  welfare 
of  the  State.  The  fact  has  become  manifest  that  Chris- 
tianity does  not  need  the  fostering  of  the  State,  and 
there  has  been  a  tendenc}-  of  late  years  towards  the 
withdrawal  of  these  disqualifications,  so  that  now  they 
remain  in  the  Constitutions  of  only  three  States,  Dela- 
ware, Kentucky,  and  Tennessee,  the  first  giving  no  rea- 
son for  the  disqualification,  and  confining  it  to  the  time 
that  the  minister  ' '  continues  in  the  exercise  of  the  pas- 
toral or  clerical  functions. ' ' 

The  fostering  of  any  particular  Christian  sect,  by 
making  appropriations  to  it  from  the  public  treasur}-, 
is  a  wrong  so  obvious  as  to  need  no  special  considera- 
tion. Were  it  the  dut}-  of  the  government,  however, 
to  foster  Christianity  in  general,  a  sect  seeking  an 
appropriation  might  plead  that  it  was  simply  doing  its 
own  share  in  bringing  the  government  to  a  performance 
of  its  duty,  and  that  the  other  sects,  instead  of  condemn- 
ing it,  ought  to  follow  its  example.  It  might  refer  in 
support  of  its  plea  to  the  appropriations  lately  made  by 
the  federal  government  to  different  Christian  denomi- 


346       Dtitics  of  the  State  as  Christian. 

nations  for  the  carrying  on  of  schools  among  the  In- 
dians ;  but  the  fact  referred  to  would  give  no  support 
to  the  plea.  It  was  not  the  intention  of  the  govern- 
ment in  making  those  apjDropriations  to  foster  Christi- 
anity in  general,  by  fostering  all  the  sects,  in  particular  ; 
for  it  did  not  propose  to  give  appropriations  to  more 
than  a  few  of  the  leading  denominations.  The  inten- 
tion of  the  government  was  to  foster  Christianity  among 
the  Indians,  a  work  which  as  we  have  already  .seen,  it 
was  under  obligation  to  do,  and  which  it  might  better 
have  done  directly  than  indirectly  by  selecting  certain 
denominations  for  the  purpose,  assigning  territory  to 
them  severally,  and  making  appropriations  to  them, 
which  with  .so  much  color  of  reason  could  be  called  .sec- 
tarian. The  public  sentiment  against  making  appropria- 
tions from  the  public  treasury  to  any  Christian  sect  upon 
any  pretence  whatsoever,  whether  of  promoting  educa- 
tion or  charity,  is  so  widespread  and  firmly  established 
and  the  conditions  in  which  such  appropriations  can 
be  obtained  are  .so  unlikeh^  to  occur  and  so  repugnant  to 
the  feelings  of  personal  independence  that  no  other  safe- 
guard is  thought  to  be  necessary  to  prevent  the  wrong. 

On  the  14th  of  December,  1875,  Mr.  James  G.  Blaine, 
in  accordance  with  a  recommendation  of  President 
Grant,  proposed  in  the  House  of  Representatives  the 
following  amendment  to  the  Constitution  of  the  United 
States,  viz.: 

"  No  State  shall  make  any  law  respecting  an  estab- 
lishment of  religion,  or  prohibiting  the  free  exercise 
thereof ;  and  no  money  raised  by  school  taxation  in 
any  State  for  the  support  of  public  .schools,  or  derived 
from  any  public  fund  therefor,  nor  any  public  lands 
devoted  thereto,  shall  ever  be  under  the  control  of  any 
religious  sect ;  nor  shall  any  money  so  raised,  or  land 


Duties  of  the  State  as  Christian.        347 

so  devoted,  be  divided  between  religious  sects  or 
denominations. ' ' 

While  the  matter  was  pending  in  the  House,  both 
the  great  political  parties  happened  to  hold  their 
quadrennial  conventions,  and  both  included  in  their 
platforms  an  approval  of  the  measure,  either  in  form 
or  in  principle.  In  the  platform  of  the  Republican 
part}-  is  the  following  declaration,  viz.  : 

"  The  public  school  system  of  the  several  States  is 
the  bulwark  of  the  American  Republic,  and  with  a 
view  to  its  security  and  permanence,  we  recommend  an 
amendment  to  the  Constitution  of  the  United  States, 
forbidding  the  application  of  any  pubHc  funds  or  prop- 
erty for  the  benefit  of  any  schools  or  institutions  under 
sectarian  control." 

In  the  platform  of  the  Democratic  party  was  the  fol- 
lowing declaration,  viz. : 

"The  public  schools,  of  which  the  establishment 
and  support  belong  exclusively  to  the  several  States, 
and  which  the  Democratic  partj'  has  cherished  from 
their  foundation,  and  is  resolved  to  maintain  without 
prejudice  or  preference  for  any  class,  sect,  or  creed,  and 
without  largesses  from  the  treasury  for  anj-.     .     .     ." 

The  amendment,  with  an  added  clause,  was  ap- 
proved by  the  House  of  Representatives  August  4, 
1S76,  by  a  vote  of  one  hundred  and  eighty  for  and 
seven  against.  In  the  Senate  it  was  further  amended 
and  as  the  vote  stood  twent>--eight  for  and  sixteen 
against  it  was  defeated,  Art.  V.  of  the  Constitution 
requiring  a  vote  of  two  thirds  in  both  houses  for  the 
proposing  to  the  people  or  the  legislatures  of  the  States 
of  amendments  to  the  Constitution.  The  matter  has 
since  that  time  not  been  deemed  of  suflScient  urgency 
to  be  re\'ived  and  pressed  to  a  conclusion. 


348       DtUies  of  the  State  as  Christian. 

Only  one  Christian  sect  (the  Roman  Catholic)  now 
seeks  or  shows  any  willingness  to  accept  any  such 
appropriations,  and  the  amendment  in  question  has 
therefore  seemed  to  contain  a  direct  condemnation  of 
that  particular  division  of  the  Church,  a  thing  which  a 
generous  people  would  forbear  inflicting  until  there 
should  be  a  practical  necessity.  In  the  present  state 
of  public  sentiment  it  is  possible  to  obtain  such  an  ap- 
propriation only  in  particular  localities,  and  only  when 
the  sect  seeking  it  includes  in  its  membership  votes 
enough  to  make  a  balance  of  power  between  the  con- 
tending political  parties,  is  able  to  control  the  votes  of 
its  members,  and  is  willing  to  make  corrupt  bargains 
with  the  political  partiesrfor  the  disposal  of  those  votes.' 

'  From  1886  to  1893  the  Roman  Catholic  church  received, 
from  the  United  States  government,  for  contract  schools  among 
the  Indians,  12,366,416  and  all  the  Protestant  denominations 
received,  during  the  same  period,  for  the  same  purpose,  $937,977. 
This  vast  disproportion  may  be  attributed  to  greater  vigilance, 
persistence,  and  better  organized  efforts,  in  solicitation.  But 
that  is  only  the  proximate  cause.  No  Protestant  denomination 
could  hope  to  have  obtained  a  like  amount  by  a  like  effort. 
The  ultimate  cause,  the  cause  without  which  the  result  could 
not  have  been  accomplished,  was  nothing  else  than  the  con- 
trol of  Catholic  votes  by  the  Catholic  clergy.  The  methods  of 
the  Jesuits,  and  the  control  exercised  by  the  clergy  over  the 
people  in  secular  affairs,  are  two  surviving  follies  of  the  Ro- 
man Catholic  Church,  surprising  anachronisms  in  this  country 
and  in  this  age.  That  church  has  the  advantage  of  a  vener- 
able antiquity,  of  an  imposing  ecclesiastical  organization,  and 
of  a  system  of  theology  built  up  by  ages  of  earnest  thought, 
and  it  might  be  expected  to  hold  its  own  more  securely  and 
extend  itself  more  rapidly  did  it,  like  Protestant  denominations, 
rely  upon  the  power  of  intellectual  conviction,  and  the  vigor  of 
spiritual  life,  rather  than  upon  the  force  to  be  exerted  through 
an  ecclesiastical  machine.     Its  methods  cause  it  to  be  regarded 


Duties  of  the  State  as  Christian.        349 


Furthermore,  experience  has  shown  that  while  a 
minority  wielding  such  a  power  may  enjo}^  its  unright- 
eous gains  for  a  time  ;  yet,  with  a  powerful  public  moral 
sentiment  against  it,  the  success  it  achieves  is  likely  to 
be  in  the  end  more  disastrous  than  defeat.  The  great 
public  which  suffers  from  the  wrong  may  be  slow  to 
move,  but  there  is  a  point  beyond  which  its  forbearance 
will  not  go,  and  the  temerity  the  offender  gains  from 
his  successes  will  tend  to  hasten  the  retribution.  A 
far-sighted  prudence  therefore  would  restrain  any  sect 
from  seeking  to  obtain  the  fostering  of  the  government 
by  appropriations  from  the  public  treasur)'.  This,  to- 
gether with  the  rare  occurrence  of  the  conditions  in 
which  such  fostering  is  possible,  and  the  odiousness 
of  those  conditions  when  the}'  occur,  render  any  legal 
prohibition  practically  unnecessary.  Yet  such  a  pro- 
hibition would  prevent  the  rising  of  a  desire  for  such 
fostering,  and  the  vexation  which  would  be  produced 
on  the  one  side  by  its  occasional  success  and  on  the 
other  side  b}'  its  defeat, 

2d.  To  give  preference  and  favor  to  Christian- 
ity.— While  the  State  ought  not  to  adopt  any  positive 
measures  for  the  fostering  of  Christianity  ;  5'et  when 
Christianity  is  brought  to  its  notice  in  such  a  way  as 
to  require  positive  action,  it  ought  to  give  preference 
and  favor  to  Christianity.  It  ought  to  do  so,  not  on 
the  ground  that  being  a  person  it  must  have  a  belief  on 
the  subject  of  religion,  and  being  a  person  in  authorit}', 

with  contempt  by  all  self-respecting  people,  and  to  be  suspected, 
as  a  dangerous  political  factor,  by  all  patriotic  citizens,  outside 
of  its  own  communion.  It  may  be,  however,  that  a  compre- 
hensive paternalism  belongs  essentially  to  that  form  of  church 
government  which  recognises,  as  its  supreme  and  infallible 
head,  one  whose  official  title,  in  the  official  language,  is  Papa. 


350       Duties  of  the  State  as  Christian. 

it  is  under  obligation  to  pronounce  one  religion  true  and 
another  false,  but  on  the  ground  that  Christianity^  is 
the  religion  of  the  people.  Other  religions  are  entitled 
to  toleration  and  protection,  but  not  to  favor.  A  for- 
eign language  is  entitled  to  toleration,  and  persons  who 
prefer  it  are  entitled  to  protection  in  the  use  of  it,  but 
the  English  language  alone  is  entitled  to  favor.  The 
favor  is  not  given  to  Christianity  and  the  English  lan- 
guage because  they  are  so  essential  to  the  government, 
or  so  identified  with  it,  that  it  could  not  exist  if  either 
were  to  be  changed.  The  one  being  the  religion  of  the 
people,  and  the  other  the  language  of  the  people,  pub- 
lic policy  requires  that  both  should  receive  preference 
and  favor  from  the  State. 

The  Constitution  of  Illinois  requires  that,  "  All 
laws  of  the  State  of  Illinois  and  all  official  writings  and 
the  executive,  legislative,  and  judicial  proceedings,  shall 
be  conducted,  preserved,  and  published  in  no  other  than 
the  English  language."  ' 

Upon  the  appeal  of  William  McCo)^  from  a  decision 
of  the  Circuit  Court  of  Cook  County,  the  Appellate 
Court  of  Illinois  decided  as  follows,  March,  1889,  Gary, 
P.J. 

' '  Upon  a  bill  filed  by  a  tax-paj-er  of  the  City  of  Chi- 
cago to  enjoin  it  from  entering  into  any  contract  for,  or 
the  paying  out  of  any  money  for  publishing  in  the 
German  language,  matters  and  things  required  by  law 
or  ordinance  to  be  published  in  a  newspaper,  this  court 
holds  that  under  the  State  Constitution  such  publica- 
tion must  be  in  the  English  language  alone.  .  . 
If  the  city  may  publish  at  public  expense  in  German, 
why  may  it  not  pass  ordinances  and  conduct  its  busi- 
ness in  Greek?  .  ,  .  The  decree  of  the  Circuit 
»  Schedule,  ^i8. 


Duties  of  the  State  as  Christian.       351 

Court  dismissing  the  bill  is  reversed,  and  the  cause  re- 
manded with  directions  to  perpetually  enjoin  the  city  as 
prayed  in  the  bill.     .     .     ."  ' 

We  might  ask  in  passing  upon  what  ground  the  Eng- 
lish language  can  be  legally  recognized  as  the  language 
of  the  people  which  would  not  entitle  Christianity  to  be 
legally  recognized  as  the  religion  of  the  people.  The 
urgency  of  the  public  policy,  it  must  be  admitted,  is 
greater  in  the  one  case  than  in  the  other,  but  if  the 
English  language  can  be  made  the  established  language 
of  the  State  so  far  as  to  prohibit  the  use  of  any  other 
language  in  the  conducting,  preser^-ing,  or  publishing 
of  official  business,  Christianity  upon  the  same  princi- 
ple may  be  made  the  established  religion  of  the  State 
so  far  as  to  prohibit  an}-  other  than  Christian  religious 
ser\'ices  to  be  conducted  b}'  appointment  of  the  State 
and  to  be  paid  for  out  of  the  treasury-  of  the  State. 

3d.  To  give  equal  protection  to  Christians,  Non- 
Christians,  and  Anti-Christians. — The  State  ought 
to  protect  Jews,  Mohammedans,  and  pagans  dwelling 
among  us  in  their  worship  when  that  worship  is  orderly 
and  not  connected  with  immoral  practices,  punishing 
all  unnecessary  and  malicious  disturbance  thereof. 

It  ought  also  to  protect  all  orderl}'  meetings  of  un- 
believers, even  when  assembled  on  the  Lord's  Day,  for 
the  purpose  of  controverting  the  doctrines  and  disprov- 
ing the  evidences  of  the  Christian  religion.  Such  pro- 
tection would  no  more  imply  indifference  to  Christianity, 
than  the  protection  of  the  subjects  of  a  king  from  mob 
violence  when  met  within  our  borders  in  an  orderly 
manner,  to  advocate  the  principles  of  monarchy,  would 
impl}-  indifference  to  republican  institutions. 

'  McCoy  V.  City  of  Chicago  et  al.,  33.  Appellate  Court  Re- 
ports, 576. 


352        Duties  of  the  State  as  Christian. 

The  protection  ought  to  be  impartiall3^  given  as  be- 
tween the  believer  and  the  unbeliever.  Care  ought  to 
be  taken,  lest  an  ill-defined  and  untenable  theor\'  as  to 
the  character  of  the  government  should  produce  a  bias 
and  lead  to  a  discrimination  against  Christian  people. 
If  with  Mr.  Anderson  (see  p.  295)  we  are  to  regard  the 
common  law,  which  makes  blasphemy,  Sunday  dese- 
cration, and  the  disturbance  of  religious  assemblies, 
indictable  offences,  as  simply  providing  protection 
against  nuisances,  we  have  a  right  to  insist  that  as 
much  consideration  be  given  to  the  religious  feelings 
of  Christian  people  as  to  the  mere  bodily  senses  of  the 
public  in  general. 

It  may  be  said  that  the  law  requiring  that  a  render- 
ing establishment,  or  a  slaughter-house,  be  removed 
outside  of  city  limits,  had  regard  only  to  the  effect  of 
the  odors  upon  the  health  of  the  people,  and  no  regard 
whatever  to  their  comfort  as  affected  by  the  stench. 
But  while  there  is  ground  for  the  presumption  that 
some  unpleasant  odors  are  detrimental  to  health,  it  is 
not  certain  that  all  are.  It  has  not  been  positivel}^  as- 
certained that  the  workmen  in  the  establishments  just 
mentioned  are  especially  subject  to  disease.  The  mo- 
tive force  that  produces  legislation  in  such  cases  comes 
from  the  people,  and  the  most  energetic  motive  is  the 
one  which  is  most  likely  to  be  foremost  in  action,  and 
that  is,  in  this  case,  the  feeling  of  discomfort.  The 
probabilit}',  therefore,  is  that  legislation  as  to  nuisances 
is  based  in  a  large  measure  upon  the  feelings  of  the 
people.  Were  an  action  to  be  brought  to  secure  the 
removal  of  an  establishment  that  filled  the  air  with 
offensive  odors,  it  is  not  at  all  likely  that  the  com- 
plainant would  be  required  to  prove  that  the  odors 
were  noxious  as  well  as  offensive.     The  religious  feel- 


Duties  of  the  State  as  CJiristian.        353 

ings  of  the  Christian  are  certainly  as  worthy  of  pro- 
tection from  offence,  as  the  feeUngs  excited  by  the  sense 
of  smell.  The  State  ought,  therefore,  to  prohibit  such 
acts,  displays,  and  demonstrations  on  the  I^ord's  day 
as  offend  those  feelings.  The  Christian  ought  not  to 
be  required  either  to  have  no  religious  feelings,  or  to 
suffer  the  pain  of  the  offence  as  a  penalty  for  having 
them. 

Christian  people,  also,  have  a  right  to  protection  in 
the  training  of  their  children  in  what  they  regard  as  a 
matter  of  verj-  great  importance.  People  who  desire 
to  secure  for  their  children  the  benefits  of  education, 
have  a  right  to  demand  that  bear  dances,  brass  bands, 
and  military  parades  shall  not  be  obtruded  upon  the 
attention  of  their  children  in  such  a  way  as  to  interfere 
with  the  attainment  of  the  desired  end.  Should  those 
who  were  engaged  in  these  exercises  sincerely  believe 
that  education  made  people  worse  instead  of  better, 
yet,  as  ever}'  one  will  readilj^  see,  they  have  no  right 
thus  to  defeat  the  efforts  of  those  who  think  best  to 
educate  their  children. 

The  Supreme  Court  of  Pennsylvania,  in  the  case  of 
Johnston  v.  Com.,  10  Harris,  102,  Woodward,  J.,  said  : 
"  The  right  to  rear  a  famil)'  with  a  becoming  regard  to 
the  institutions  of  Christianity,  and  without  compel- 
ling them  to  witness  the  hourly  infractions  of  one  of 
its  fundamental  laws  ;  the  right  to  enjoy  the  peace  and 
good  order  of  society,  and  the  increased  security  of 
life  and  propertj^  which  result  from  a  decent  observ- 
ance of  the  Sabbath,  are  real,  substantial  rights,  which 
the  legislature  sought  to  secure  by  this  enactment  (and 
when  has  legislation  aimed  at  higher  objects  ?)  and  as 
much  the  subjects  of  governmental  protection  as  any 
other  right  of  person  or  property."     This  decision  was 


354        Duties  of  the  State  as  Christian. 

quoted  by  the  Supreme  Court  of  New  York  with  ap- 
probation in  the  case  of  lyindenmuller  v.  The  People,  33 
Barbour,  560. 

For  these  very  plain  reasons  business  houses  ought 
not  to  be  allowed  to  be  open  on  Sunday,  nor  should 
military  companies,  or  brass  bands,  be  allowed  to  parade 
on  the  streets  on  Sunday,  nor  should  base-ball  games 
or  other  shows  be  allowed  even  outside  of  city  limits, 
when  they  obtrude  themselves  on  the  public,  by  the 
throngs  on  the  streets  going  to  or  coming  from  the 
place  of  exhibition.  The  law  of  nuisance  should  be 
impartiall}^  enforced.  Even  if  the  government  is  to  be 
regarded  as  destitute  of  positive  Christian  character  ; 
if  the  statutes  which  make  blasphemy  and  Sunday 
desecration  offences,  are  to  be  regarded  as  simply  pro- 
viding protection  against  nuisances,  it  is  a  wrong  to 
discriminate  against  Christian  citizens  in  the  enforce- 
ment of  the  laws.  If,  however,  it  is  true  that  our  gov- 
ernment is  necessarily,  rightfully,  and  legally  Chris- 
tian, such  discrimination  would  become  a  still  greater 
wrong.  That  there  is  a  tendenc}'  towards  such  dis- 
crimination is  indicated  by  the  fact  that  some  of  the 
States  have  no  law  against  blasphemy,  and  one  (Cali- 
fornia) has  repealed  its  Sunday  laws,  and  has  made 
Sunday  merely  a  holiday,  with  no  distinction  between 
it  and  any  other  holiday. 

It  may  be  that  Christian  people  have  become  so  im- 
bued with  their  Master's  spirit  of  meekness  that  blas- 
phemy and  desecrati'sn  of  the  Sabbath  do  not  now 
provoke  to  a  disturbance  of  the  peace  of  society  ;  but 
they  still  have  feelings,  and  it  is  to  be  presumed  that 
increased  meekness  has  been  attended  with  increase  in 
the  strength  and  tenderness  of  feeling.  Therefore,  the 
nuisance  in  question  is  to  them  more  aggravated  now 


Duties  of  the  State  as  Christian.       355 

than  ever  before  ;  and  there  is  more  reason  now  than 
ever  before  for  making  and  enforcing  laws  for  their 
protection. 

4th.  Not  to  adopt  any  sectarian  Christian  doc- 
trines, nor  protect  bequests  for  pious  uses. — The 
State  ought  not  to  take  any  action  which  involves  the 
adoption  or  establishment  of  any  sectarian  Christian 
doctrine.  The  courts  may  interpret  the  doctrinal  stand- 
ards of  all  the  Christian  denominations  ;  not,  how- 
ever, to  declare  which  are  true  or  false,  but  just  as  they 
would  interpret  a  contract,  a  deed,  a  will,  or  anj'  other 
document,  to  compel  the  fulfilment  of  an}'  obligation 
that  ma}'  be  dependent  thereon.  The  State  maj'  pro- 
tect bequests  for  charitable  purposes,  and  ma}'  decide 
what  ptu-poses  are  charitable.  It  may  grant  incorpora- 
tion to  churches,  theological  schools,  and  missionary 
societies,  which  being  corporate  persons  have  the  right 
that  belongs  to  all  other  persons  to  receive  gifts  and 
bequests  for  the  promotion  of  their  proper  work. 
Notwithstanding  that  the  bequests  made  to  these  in- 
stitutions are  intended  to  aid  in  the  teaching  and  prom- 
ulgation of  certain  Christian  doctrines,  yet  the  State  in 
granting  them  protection  does  not  make  any  decision 
upon  the  character  of  those  doctrines  ;  not  any  more 
than  it  approves  of  the  theology  of  any  other  person 
whom  it  protects  in  the  enjoyment  of  property  received 
by  bequest.  It  has  been  held,  however,  that  the 
State  cannot  protect  bequests  that  have  been  made  for 
what  are  technically  called  pious  uses.  Boards  of  trus- 
tees may  become  incorporated,  but  a  trustee  in  the 
technical  .sense  of  the  term  is  not  a  corporate  per- 
son. A  corporate  body  is  created  by  the  State.  The 
trust,  however,  is  created  by  an  individual,  and  the 
trustee  is  appointed  by  him,  and  it  falls  therefore  to 


356        Duties  of  the  State  as  C Jurist i an. 

the  courts  to  pass  judgment  upon  the  object  of  the 
trust  when  it  is  brought  before  them  for  action.  The 
appointing  power  of  the  creator  of  the  trust  is  absolute  ; 
he  may  appoint  an  alien  enemy  or  a  minor,  and  the 
trustee  may  have  become  a  felon  or  a  lunatic.  Equally 
absolute  is  the  power  of  choosing  the  object  of  his 
benevolence.  The  trust  may  be  in  contra-vention  of 
the  policy  of  the  law,  as  for  the  creation  of  a  perpetu- 
ity, "  a  thing,  odious  in  law  and  destructive  to  the  com- 
monwealth ;  stopping  commerce  and  preventing  the 
circulation  of  riches  in  the  kingdom  ;  and  therefore  not 
to  be  countenanced  in  equity."  Or  it  may  be  for  purposes 
connected  with  immoral  practices,  as  for  the  support  of 
illegitimate  children  that  may  happen  in  the  future  to 
be  born.  The  State,  in  granting  protection  to  a  trust, 
acting  through  its  courts,  must  give  judgment  approv- 
ing of  both  the  trustee  and  the  object  of  the  trust.  It 
is  only  upon  the  ground  of  such  approval  that  the  pro- 
tection asked  can  be  given.  If  the  State  grant  protec- 
tion to  a  bequest,  placed  in  the  hands  of  a  trustee  for 
pious  uses,  it  must  be  regarded  as  approving  of  the 
special  doctrine  upon  which  the  use  is  based.  If  the 
doctrine  be,  as  it  may  often  happen  to  be,  a  mere  super- 
stition, the  State  in  protecting  the  bequest  would  be 
giving  its  approbation  to  the  superstition,  and  also 
acting  in  contra-vention  of  public  polic}^, — diverting 
funds  from  productive  business,  fruitful  of  benefits  to 
mankind,  to  a  use  which  can  be  fruitful  only  of  evil. 
Whatever  it  may  do  in  the  case  it  must  decide  whether 
the  doctrine  upon  which  the  pious  use  is  founded  be  a 
superstition  or  not.  In  England  a  devise  for  a  fund  to 
circulate  a  book  teaching  the  supremacy  of  the  Pope 
in  matters  of  faith  ;  to  provide  prayers  and  masses  for 
the  good  of  the  soul  of  the  testator ;    to  maintain  a 


Duties  of  the  State  as  Christian.        357 

taper  forever  before  our  Lady,  has  been  held  to  be  void, 
as  being  for  a  superstitious  use.  The  State  ought  not 
to  decide  upon  the  truth  or  falseness  of  any  sectarian 
Christian  doctrine  ;  and  if  the  protection  of  a  bequest 
for  pious  uses  necessarily  involves  such  a  decision  the 
protection  ought  not  to  be  given. 

In  the  case  of  Andrew  v.  The  N.  Y.  Bible  and  Prayer 
Book  Society,  4  Sand  ford's  Superior  Court  Reports. 
180-184,  the  question  at  issue  was  whether  a  legacy 
given  for  the  purpose  of  promoting  the  circulation  of 
the  Book  of  Connnon  Prayer  in  New  York  could  be 
sustained  upon  the  ground  of  its  being  a  pious  use.  The 
court  said  :  "  .  .  .  The  use  attached  to  this  legacy 
is  not  a  charitable  use,  in  the  usual  and  legal  sense  of 
the  term.  It  is  strictly  a  pious  use :  not  otherwise  chari- 
table than  as  the  noblest  office  of  charit}'-  is  the  dissemi- 
nation of  religious  truth  ;  but  it  is  impossible  for  a 
court  of  justice  to  sustain  a  use  upon  this  ground,  un- 
less in  a  country  where  the  truths  of  religion  have  been 
settled  and  defined  by  law,  or  judges  have  discretion- 
ary power  to  determine  and  declare  them. 
Under  a  Constitution  which  extends  the  same  protec- 
tion to  ever}'  religion,  and  to  ever)'  form  and  sect  of 
religion,  which  establishes  none  and  gives  no  preference 
to  any,  there  is  no  possible  standard  by  which  the  va- 
lidity of  a  use  as  pious  can  be  determined  ;  there  are 
no  possible  means  by  which  judges  can  be  enabled  to 
discriminate  between  such  uses  as  tend  to  promote  the 
best  interests  of  societ)'  by  spreading  the  knowledge 
and  inculcating  the  practice  of  true  religion,  and  those 
which  have  no  other  effect  than  to  foster  the  growth  of 
pernicious  errors,  to  give  a  dangerous  permanence  to 
the  reveries  of  a  wild  fanaticism,  or  encourage  and  per- 
petuate the  observances  of  a  corrupt   and  degrading 


358       Duties  of  the  State  as  Christian. 

superstition.  Hence,  unless  all  uses  that  may  be  de- 
nominated pious  shall  be  subjected  to  the  same  rule 
as  other  trusts,  we  shall  find  no  escape  from  this  alter- 
native ;  either  all  uses  for  a  religious  purpose,  whether 
the  religion  they  are  intended  to  aid  be  true  or  false, 
rational  or  absurd,  must  be  upheld  and  enforced,  or  the 
uses  connected  with  a  particular  form  of  religion  must 
be  selected  as  the  special  and  exclusive  objects  of  favor 
and  encouragement.  If  we  adopt  the  first  course,  we 
renounce  the  principle  upon  which  pious  uses  were  first 
introduced,  and  upon  which  alone  their  defence  can  be 
rested,  namely,  their  tendency  to  benefit  society  by  dif- 
fusing the  knowledge  and  practice  of  true  religion. 
We  disregard  and  denj'  the  eternal  distinctions  between 
truth  and  falsehood,  and  give  the  sanction  of  law  to  the 
pernicious  absurdity  that  all  religions,  however  contra- 
dictory in  their  tenets  and  in  their  precepts,  have  a  just 
and  equal  claim,  not  merely  to  the  protection,  but  to 
the  favor  of  the  government,  and  are  not  simpl}'  to  be 
tolerated  but  encouraged.  If  we  adopt  the  second  al- 
ternative, we  violate  that  equality  between  different  re- 
ligions and  different  forms  and  sects  of  religion  which 
the  principles  of  our  government  and  the  provisions  of 
our  constitution  are  designed  to  secure  ;  we  create  an 
odious  distinction  between  different  classes  of  our  citi- 
zens ;  and  by  declaring  that  the  religion  which  we  favor 
is  alone  true  we  establish  it,  in  a  restricted  sense  it 
is  true,  but  in  a  definite  sense,  as  the  religion  of  the 
State. 

"  We  are  quite  aware  of  the  answer  that  has  been 
given  to  this  objection.  Christianity,  it  has  been  as- 
serted, is  now  in  a  modified  sense  the  religion  of  the 
State.  It  is  so  as  a  part  of  the  common  law  which  our 
ancestors  introduced  and  we  have  retained.     Christian- 


1 


Duties  of  the  State  as  Christmn.        359 

ity,  therefore,  furnishes  the  test  that  is  desired,  so  that 
in  judging  of  the  vaHdity  of  a  use  as  pious  we  have 
only  to  inquire  whether  it  is  in  harmony  with  the  doc- 
trines that  Christianity  teaches.  The  maxim  that 
Christianity  is  part  and  parcel  of  the  common  law  has 
been  frequently  repeated  by  judges  and  text  writers, 
but  few  have  chosen  to  examine  its  truth  or  attempt 
to  explain  its  meaning.  We  have  however  the  high 
authorit}-  of  Lord  Mansfield  and  of  his  successor,  the 
present  Chief  Justice  of  the  Queen's  Bench,  Lord  Camp- 
bell (Campbell's  Lives  of  Chief  Justices,  vol.  ii.,  p.  513) 
for  stating,  as  its  true  and  only  sense,  that  the  law  will 
not  permit  the  essential  truths  of  revealed  religion  to 
be  ridiculed  and  reviled.  In  other  words,  that  blas- 
phemy is  an  indictable  offence  at  common  law.  The 
truth  of  the  maxim  in  this  very  partial  and  limited 
sense  may  be  admitted.  But  if  we  attempt  to  extend 
its  application  we  shall  find  ourselves  obliged  to  con- 
fess that  it  is  unmeaning  or  untrue.  If  Christianity  is 
a  mmiicipal  law,  in  the  proper  sense  of  the  term,  as  it 
must  be  if  a  part  of  the  common  law,  every  person  is 
liable  to  be  punished  b}-  the  civil  law  who  refuses  to 
embrace  its  doctrines  and  follow  its  precepts  ;  and  if  it 
must  be  conceded  that  in  this  sense  the  maxim  is  un- 
true, it  ceases  to  be  intelligible,  since  a  law  without  a 
sanction  is  an  absurdity  in  logic  and  a  nullity  in  fact. 

"  Let  it  be  admitted,  however,  that  Christianity  is  a 
part  of  the  common  law  in  any  sense  of  the  maxim, 
which  those  who  assert  its  truth  may  choose  to  attrib- 
ute to  it.  The  onl}^  effect  of  the  admission  is  to  create 
new  difficulties  quite  as  impossible  to  overcome  as  those 
that  have  already  been  stated.  How,  we  would  then 
ask,  in  judging  of  the  validity  of  a  use  as  pious,  are  we 
to  apply  the  test  which  Christianity  is  said  to  furnish  ? 


360       Duties  of  the  State  as  Christia^i. 

It  will  not  be  pretended  that  the  common  law  has  sup- 
plied us  with  any  definition  of  Christianity.  Yet  with- 
out a  judicial  knowledge  of  what  Christianity  is,  how 
is  it  possible  to  determine  whether  a  particular  use, 
alleged  to  be  pious,  is  or  is  not  consistent  with  the 
truths  which  Christianity  reveals  ?  No  religious  use 
has  been  or  can  be  created  that  does  not  impl}^  the  ex- 
istence and  truth  of  some  particular  religious  doctrine, 
and  hence  when  we  affirm  the  validity  of  a  use  as  pious, 
we  necessaril}^  affirm  the  truth  of  the  doctrine  upon 
which  it  is  founded.  In  a  country  where  a  definite 
form  of  Christianity  is  the  religion  established  by  law, 
the  difficulty  to  which  we  refer  is  not  felt,  since  the 
doctrines  of  the  established  church  then  supply  the 
criterion  which  is  sought  ;  but  with  us,  it  can  readily 
be  shown  that  the  difficulty  is  not  merely  real  and  seri- 
ous but  insurmountable. 

"  I^et  us  suppose  that  a  Roman  Catholic  had  devised 
his  whole  estate,  real  and  personal,  to  trustees,  to  applj^ 
the  income  forever,  one  half  to  the  purchase  of  indul- 
gences for  the  benefit  of  such  as  might  seek  them,  and 
the  other  moiety  to  the  payment  of  dail}'  masses  for  the 
safety  of  his  soul,  and  that  the  validit}'  of  this  devise 
were  the  question  to  be  determined.  In  England  such 
uses  are  held  to  be  void,  as  superstitious  ;  but  the 
statute  by  which  they  are  declared  so  we  have  repealed, 
and  some  other  rule  or  principle  must  be  found  to  gov- 
ern our  decision.  The  uses,  it  is  manifest,  imply  the 
existence  and  truth  of  certain  important  doctrines. 
The}'  imply  that  the  Saviour  has  delegated  to  the  Pope, 
as  His  vicar  on  earth,  the  absolute  and  unconditional 
power  of  pardoning  sin.  They  imply  the  existence  of 
purgatory,  and  the  duty  and  efficacy  of  prayers  for  the 
dead.     Such  is  the  necessary  import  of  the  uses  upon 


Duties  of  the  State  as  Christian.       361 

the  validity  of  which,  guided  by  the  light  of  Christi- 
anity, we  are  required  to  pronounce.  Shall  we,  by 
sustaining  them  as  pious,  declare  that  the  doctrines 
which  they  imply  belong  to  the  class  of  truths  which 
the  New  Testament  reveals  ;  or  shall  we,  by  rejecting 
them  as  superstitions,  condemn  as  false  and  corrupt  the 
ancient  faith  which  so  large  a  class  of  our  citizens  avow 
and  follow?  Are  these  questions,  over  which  we,  as 
judges,  whatever  we  may  privately  think,  have  any 
jurisdiction?  Are  they  questions  which  any  court  of 
justice  in  this  State,  at  any  time  since  the  formation 
of  our  present  government,  could  rightfully  entertain 
and  decide?  Such  are  the  questions  that  must  be  con- 
sidered and  decided,  if  uses  inconsistent  with  the  gen- 
eral rule  of  law  are  to  be  sustained  as  pious,  and  the 
proper  test  of  their  legalit}'  as  such  is  their  corre- 
spondence with  the  true  doctrines  of  Christianity. 

' '  For  ourselves,  if  the  case  we  have  supposed  w^ere  now 
before  us,  we  should  not  hesitate  in  pronouncing  our 
judgment,  abstaining  from  any  remarks  upon  the 
nature  and  tendenc}-  of  the  uses,  neither  admitting 
them  to  be  pious,  nor  condemning  them  as  superstitious. 
We  should  hold  the  devise  to  be  entirely  void,  as  re- 
pugnant to  those  wise  and  salutary  rules  of  law  which 
forbid  the  citizen  to  withdraw  his  property,  beyond  a 
limited  period,  from  that  free  circulation  which  the 
interests  of  commerce  and  the  healthful  action  and  per- 
manence of  our  Republican  institutions  alike  demand ; 
and  if  this  would  be  a  proper  decision  in  the  case  sup- 
posed, it  is  manifest  that  the  same  judgment  ought  to 
be  pronounced  in  every  case  where  a  trust  which  in- 
volves a  perpetuity  is  sought  to  be  maintained  upon  the 
sole  ground  of  its  piet}-.  We  may  be  disposed  to  regret 
that  a  perpetual  trust  for  the  distribution  of  that  sub- 


362       Duties  of  the  State  as  Christian. 

lime  manual  of  true  devotion,  perhaps  the  noblest  of 
human  compositions,  the  Book  of  Common  Prayer,  can- 
not be  sustained  ;  but  the  regret  must  cease  when  we 
reflect  that  it  can  only  be  sustained  upon  a  principle 
that  would  render  just  as  valid  a  similar  trust  for  the 
circulation  of  the  monstrous  fables  of  the  Talmud,  or 
the  gross  impostures  of  the  Koran." 

5th.  Not  to  give  favor  and  protection  to  a  trust 
created  with  purpose  hostile  to  Christianity. — 
The  State  ought  not  to  give  favor  and  protection  to  a 
trust  created  with  hostile  purpose  towards  Christianity. 
(See  Webster's  argument  before  the  Supreme  Court  of 
the  United  States,  in  the  case  of  Vidal  and  others  v, 
the  Executors  of  Stephen  Girard,  Works,  vol.  vi.,  pp. 
133-177  ;  also  the  decision  of  the  court  in  that  case. 
Reports,  vol.  xv.,  2,  3  Howard,  pp.  83-87,  both  re- 
ferred to  and  quoted  in  part,  p.  139,  All  persons, 
whether  real  or  corporate,  Christian  or  anti-Christian, 
are  entitled  to  freedom  of  opinion  and  of  speech,  and 
are  to  be  protected  in  the  decent  and  orderly  promul- 
gation of  their  doctrines  ;  but  a  trust  is  not  a  person 
in  any  sense  of  the  term.  Christianity,  in  a  proper 
sense,  is  the  established  religion  of  this  nation  ;  es- 
tablished, not  by  statute  law,  it  is  true,  but  by  a  law 
equally  valid,  the  law  in  the  nature  of  things,  the  law 
of  necessity,  which  law  will  remain  in  force  so  long  as 
the  great  mass  of  the  people  are  Christian.  And  not- 
withstanding some  implications  in  the  decision  just 
cited,  our  courts  are  just  as  competent  to  decide  be- 
tween Christians  and  non-Christians,  what  the  general 
principles  of  Christianity  are,  as  they  are  to  decide 
between  Christians  on  the  one  part,  and  Mormons  or 
pagans  on  the  other  part,  what  the  principles  of  moral- 
ity are. 


Duties  of  the  State  as  Christian.        36 


o 


When  it  grants  incorporation  to  societies  of  Jews, 
Mohammedans,  pagans,  and  atheists,  in  order  that 
the}^  may  be  enabled  to  hold  property,  sue  and  be  sued, 
it  creates  a  corporate  person,  which  may  be  anti-Chris- 
tian in  its  purpose,  but  the  act  no  more  implies  the 
adoption  or  the  exercise  of  a  positive  agency  in  the 
promulgation  of  the  doctrines  of  those  societies  than 
granting  incorporation  to  the  congregations,  theological 
schools,  and  missionary  organizations  of  the  various 
Christian  sects  implies  the  adoption  or  the  promulga- 
tion of  the  sectarian  doctrines  those  bodies  were  organ- 
ized to  teach.  It  may  grant  incorporation  to  societies 
of  disbelievers  and  unbelievers,  just  as  it  may  grant 
license  for  marriage  to  individual  disbelievers  and  un- 
believers, notwithstanding  that  its  act  results  in  the 
one  case  in  the  creating,  and  in  the  other  (as  is  to  be 
presumed)  in  the  begetting  of  an  anti-Christian  person. 
It  may  refuse  to  create  a  corporate  person  intended  to 
promote  immoralit}-,  just  as  it  may  refuse  license  for 
the  marriage  of  idiots  and  lepers  ;  but,  excepting  in 
such  cases,  the  person,  w^hether  created  or  begotten,  is 
entitled  to  protection  in  the  freedom  of  opinion,  of 
speech,  and  publication,  when  that  freedom  is  not  used 
in  an  indecent  and  disorderly  manner.  A  trust,  how- 
ever, is  not  a  person,  and  the  denial  of  favor  and  pro- 
tection to  a  trust  created  for  a  purpose  hostile  to 
Christianity  is  not  inconsistent  with  the  granting  of 
incorporation  to  bodies  which  may  be  presumed  to  be 
hostile  to  that  religion. 

6th.  Not  to  discontinue  any  Christian  practice 
for  any  reason  derogatory  to  Christianity. — The 
government  ought  not  to  discontinue  any  Christian 
practice  or  exercise  which  has  become  established  by 
custom  ;  such  as  the  opening  of  the  daily  sessions  of 


I 


364       Duties  of  the  State  as  Christian. 


the  Congress  of  the  United  States  and  of  the  legisla- 
tures of  the  States,  with  prayer  ;  the  employment  of 
Christian  ministers  as  chaplains  in  the  army  and  navy, 
in  the  prisons,  hospitals,  and  homes  under  its  charge  ; 
and  the  opening  of  the  daily  sessions  of  the  public 
schools  with  religious  exercises.  If  such  exercises 
should  be  discontinued  in  any  case,  it  ought  not  to  be 
for  any  reason  that  is  derogatorj'  to  Christianity. 

The  objection  that  the  sessions  of  the  courts,  supreme 
and  subordinate,  the  meetings  of  the  President's  Cabi- 
net, of  the  Governor's  council,  of  City  Councils,  and 
Boards  of  Education,  though  all  needing  divine  guid- 
ance as  much  as  the  Congress,  the  legislature,  and  the 
public  school,  are  not  opened  with  prayer,  and  that  the 
principle,  if  it  be  a  right  one,  ought  to  be  made  gen- 
eral ;  we  are  fully  warranted  in  pronouncing  a  mere 
cavil,  for  there  are  obvious  reasons  for  an  opening  with 
pra3'er  in  the  one  class  of  cases  which  do  not  exist  in 
the  other. 

A  strong  impression  of  greatness  or  importance  pro- 
duces an  exalted  state  of  feeling,  which  is  kindred  to 
and  naturally  awakens  the  religious  feeling.  Great 
perils,  great  calamities,  great  deliverances,  cause  the 
most  of  men  to  think  of  the  Almighty.  Mountain 
pinnacles  fill  the  soul  with  awe  and  point  to  God.  The 
meeting  of  large  numbers  of  men  for  a  common  object, 
especially  if  the  meeting  be  a  formal  one,  is  impressive, 
and  excites  an  emotion  which  naturall)^  tends  upward. 
It  is  perfectly  natural  that  the  great  National  and  State 
political  conventions  should  be  opened  with  prayer  ; 
not  so  natural  that  the  meetings  of  the  National  execu- 
tive committees  should  be  opened  with  prayer ;  per- 
fectly natural  that  the  National  and  State  Teachers' 
Associations  should   be   opened   with   prayer ;  not   so 


Duties  of  tJic  State  as  Christian.        365 

natural  that  the  meetings  of  sections  and  committees 
should  be  so  opened  ;  perfectly  natural  that  the  daily 
sessions  of  Congress  and  the  legislature  should  be 
opened  with  prayer  ;  not  so  natural  that  the  meetings 
of  their  committees  should  be  so  opened  ;  perfectly 
natural  that  the  daily  sessions  of  the  public  school 
should  be  opened  with  prayer  ;  not  so  natural  that  the 
meetings  of  the  Board  of  Directors  should  be  opened 
with  prayer.  It  would  be  hardly  just  for  the  unbe- 
liever to  say  that  in  these  cases  of  omission  the  public 
authorities  have  come  over  to  his  ground,  and  that  to 
be  consistent  they  ought  to  make  the  omission  general. 
They  have  not  come  over  to  his  ground.  They  have 
not  made  the  omissions  for  his  reasons  at  all. 

7th,  Either  to  exempt  church  property  from 
taxation  or  change  principle  of  exemption.— The 
customarj'  exemption  of  propertj^  used  for  Christian 
worship  from  taxation  may  very  well  be  continued  ;  in- 
deed, in  the  present  state  of  the  case,  ought  not  to  be 
discontinued,  for  the  discontinuance  would  involve  a 
discrimination  against  Christianitj-.  There  can  hardly 
be  a  doubt  that  it  was  the  Christian  sentiment  of  the 
people  prompted  the  exemption  at  the  beginning,  but 
it  is  doubtful  whether  the  continuance  can  be  properly 
based  on  any  obligation  which  the  government,  as 
Christian,  owes  to  Christianity.  If  the  exemption  is 
based  upon  the  supposed  duty  of  the  government  to 
foster  Christianit}',  then  it  must  follow  that  the  places 
of  worship  used  b}-  all  non-Christians, — Confucians, 
Buddhists,  Mohammedans,  and  even  the  synagogues 
of  the  Jews,  are  to  be  denied  the  like  exemption  ;  for 
it  would  be  a  self-stultification  to  foster  contradictory 
S)^stems  of  religion.  A  Christian  people  animated  by 
the  true  spirit  of  Christianity  will  not  desire  that  the 


366       Duties  of  the  State  as  Christian. 

government  shall  foster  their  religion  by  laying  upon 
the  followers  of  other  religions  burdens  from  which 
they  are  exempt.  Such  fostering  would  possess  the 
essential  character  of  persecution. 

The  exemption  may  very  properly  be  made  on  the 
general  principle  that  all  propertj^  which  is  used  for  a 
public  purpose,  and  not  for  pecuniary  profit,  is  to  be 
exempt  from  taxation  ;  the  principle  upon  which  the 
property  of  educational  and  charitable  institutions,  of 
public  libraries,  agricultural,  horticultural,  mechanical, 
and  philosophical  societies,  is  exempt.  To  make  ex- 
emptions upon  such  a  principle,  and  not  to  exempt  the 
property  used  for  Christian  worship,  would  be  to  dis- 
criminate against  Christianity  ;  and  not  to  exempt  at 
the  same  time  the  property  used  for  other  forms  of  re- 
ligious worship  would  be  to  discriminate  against  all 
religion.  It  cannot  be  denied  that  the  exemption  in 
the  case  of  the  institutions  and  societies  just  mentioned 
has  a  fostering  purpose  ;  a  purpose  which  as  we  have 
seen  cannot  be  applied  to  Christianity  without  involving 
the  persecution  of  other  religions  ;  and  cannot  be  ap- 
plied to  all  religions  without  involving  the  absurdity 
of  fostering  contradictory  systems.  To  give  them  all 
perfect  freedom  is  one  thing ;  to  foster  them  all  is 
another  thing. 

It  would  be  better,  perhaps,  to  abandon  altogether 
this  principle  of  exemption,  and  exempt  only  Federal, 
State,  County,  and  Municipal  property,  on  the  ground 
that  it  is  the  product  of  taxation.  Two  good  reasons 
may  be  given  for  the  abandonment  of  this  principle  : 
ist.  It  would  inflict  no  hardship  or  injustice  on  any- 
body. 2d.  The  principle  is  one  which  cannot  be 
consistently  carried  out.  If  the  principle  was  made 
really    general   and   was   consistently   carried   out,    it 


Duties  of  the  State  as  Christian.       367 

would  require  that  all  the  private  pleasure-grounds  and 
art  galleries  of  the  wealthy  which  are  open  to  the  public 
at  stated  times,  the  club-houses  of  the  city,  the  houses 
and  other  property  of  boating  and  yachting  clubs, 
should  be  exempt,  for  this  property  is  all  employed  for 
a  public  use,  and  not  for  pecuniary  gain,  if  not  exactly, 
yet  ver}'  nearly  in  the  same  sense  in  which  the  houses 
of  religious  worship  are  so  employed.  In  accordance 
with  this  principle  the  streets  and  pleasure-grounds  of 
Pullman,  a  suburb  of  Chicago,  containing  11,000  in- 
habitants, but  owned  entirely  by  the  Pullman  compau}', 
ought  not  to  be  taxed  ;  while  the  church  which  is 
owned  b}^  the  company  and  rented  to  the  congregation 
worshipping  in  it,  just  as  all  the  other  houses  in  the 
place  are  rented,  ought  to  be  taxed. 

8th.  Conform  its  actions  on  moral  questions 
to  the  precepts  of  Christianity. — The  State,  when 
it  acts  upon  a  moral  question,  ought  to  conform  its 
action  to  the  precepts  of  Christianity.  The  courts, 
however,  are  not  to  be  deemed  competent  to  enforce  by 
penal  inflictions  any  of  the  precepts  of  Christianity 
which  have  not  been  incorporated  with  the  statutes. 
But  the  legislature  ought  to  be  regarded  as  under  ob- 
ligation to  frame  the  statutes  on  moral  questions  in 
accordance  with  the  precepts  of  Christianity.  It  should 
not  profess  to  have  discovered  by  speculation,  or  to 
have  deduced  from  the  writings  of  sages,  or  from  the 
experience  of  mankind,  the  moral  code  upon  which  it 
bases  its  requirements  ;  nor  should  it  pretend  that  its 
moral  requirements  are  based  upon  such  a  code,  to  the 
entire  exclusion  of  all  considerations  that  may  be  drawn 
from  the  precepts  of  Christianity.  Ethics  may  have 
been  advanced  in  these  latter  days  to  the  position  of  a 
science,  but  it  is  not  an  exact  science,  its  promoters  not 


368        Duties  of  the  State  as  Christiait. 

being  agreed,  as  yet,  even  upon  its  fundamental  princi- 
ples. For  this  reason,  if  there  were  no  other,  it  is  ex- 
ceedingly doubtful  whether  the  State  can  rightly  launch 
out  upon  the  sea  of  speculative  ethics,  and  require  a 
Christian  people  to  accept  its  discoveries,  as  the  rule 
of  their  action  or  the  basis  of  their  laws.  An  abstract 
code  of  morals  for  the  State,  independent  of  the  moral 
convictions  of  the  people,  is  a  fiction.  The  code  by 
which  legislation  is  to  be  governed  is  the  code  of  the 
people  ;  and  in  this  country,  it  is  the  code  of  Chris- 
tianity. To  impose  any  other  code  than  that,  or  even 
that  as  modified  by  unbelief,  or  by  a  debased  moral 
sentiment,  would  be  a  wrong  ;  an  evil  root  which  can 
be  expected  to  produce  none  but  evil  fruit. 

Upon  the  subject  of  marriage  and  divorce,  the  State 
ought  to  conform  its  regulations  to  the  precepts  of 
Christianity,  and  not  to  any  social  code  supposed  to 
have  been  derived  from  an  extra  Christian  source.  All 
Christian  people,  Roman  Catholics  and  Protestants 
alike,  believe  that  on  this  subject  the  Bible  is  a  di- 
vinely given  rule  of  practice,  and  that  there  can  be 
therefore  no  departure  from  that  rule  but  to  the  injury 
of  the  public  welfare. 

No  more  serious  mistake  could  be  made  than  to  re- 
duce marriage  to  the  condition  of  a  mere  civil  contract, 
as  those  are  disposed  to  do  who  contend  that  the  gov- 
ernment ought  to  be  destitute  of  all  religious  character. 
Marriage  is  a  relationship,  having  its  basis  in  nature 
and  in  the  ordinance  instituted  by  nature's  God.  The 
contract  is  an  incident,  necessary  to  the  beginning  of 
the  relationship,  but  of  small  importance  compared  with 
the  relationship  itself.  The  atoms  of  Oxj'gen  and  Hy- 
drogen in  water  were  brought  into  contact  and  held 
together  by  the  force  of  gravitation,  inherent  in  each, 


Duii'es  of  ike  State  as  Christian.        369 

but  that  contact  was  only  a  necessary  incident  to  the 
union  which  afterwards  took  place,  and  which  consti- 
tuted a  permanent  relationship,  making  of  twain  one 
new  thing.  To  dissolve  the  relationship  and  force  back 
the  connection  into  one  of  mere  contact  would  be  de- 
structive to  the  constitution  of  the  world.  Scarcely 
less  destructive  to  the  constitution  of  society  would  it 
be  to  reduce  marriage  to  the  condition  of  a  mere  civil 
contract.  The  consequences  of  such  a  step  w'ould 
speedily  demonstrate  that  the  law  of  Christ,  in  this 
matter,  is  a  law  of  nature.  Much  nearer  to  the  true 
law  of  social  life  is  the  doctrine  of  the  Roman  Catholic 
Church  which  makes  marriage  a  holy  sacrament. 

There  is  one  instance  in  nature  in  which  we  have  con- 
tact without  relationship.  The  Oxygen  and  Nitrogen 
of  the  atmosphere  are  in  contact  but  not  in  union,  and 
beneficently  so.  The  Oxygen,  however,  is  no  free- 
lover  ;  and  it  is  ever  ready  to  enter  into  permanent  re- 
lationship with  some  one  of  its  affinities  ;  and  when 
the  union  is  once  consummated  it  would  be  perpetual, 
did  no  extraneous  force  produce  a  dissolution.  The 
Oxygen  in  the  atmosphere  is  like  one  of  the  sexes  in 
the  period  of  minorit}-,  ever  read}-  to  convert  the  acci- 
dental condition  of  contact  into  one  of  permanent  rela- 
tionship, from  which,  obedient  to  the  laws  of  nature,  it 
never  seeks  release.  Marriage  is  more  than  contract, 
as  chemical  union  is  more  than  contact. 

9th.  To  observe  the  Lord's  day  as  a  day  of  rest 
and  conform  its  regulations  to  the  view  held  by 
the  majority  of  the  people. — The  government  should 
observe  the  Lord's  day  as  a  day  of  rest,  and  should 
conform  the  regulations  it  prescribes  for  the  observance 
of  that  day  to  the  view  which  is  held  by  the  majority  of 
Christian  citizens.     It  has  no  right  to  inquire  into  or 


3  JO       Duties  of  the  State  as  Christian. 

decide  upon  the  merits  of  the  different  sectarian  views 
that  maybe  held  upon  that  subject.  It  has  passed  far 
beyond  that  stage  of  development  in  which  it  would 
possess  any  such  right. 

It  should  observe  and  appoint  the  first  day  of  the 
week  as  the  day  of  rest  ;  not  however  upon  the  ground 
that  it  has  rejected  the  views  of  the  Sabbatarians  and 
adopted  the  views  of  those  who  hold  to  the  divine  ob- 
ligation of  what  is  called  the  Christian  Sabbath,  but 
upon  the  ground  that  the  good  order  of  society  and  the 
attainment  of  the  object  of  the  institution  require  that 
a  particular  day  should  be  appointed  by  law,  and  that 
as  the  vast  majority  of  Christian  citizens  observe  the 
first  day  of  the  week  the  appointment  of  that  day  will 
be  attended  with  the  least  hardship. 

It  ought  to  observe  the  day  and  order  all  its  regula- 
tions for  the  observance,  in  accordance  with  the  pre- 
vailing view  as  to  the  proper  mode  of  the  observance. 
To  observe  the  day,  and  order  all  its  regulations  for  the 
observance  thereof  in  accordance  with  the  view  which 
prevails  on  the  continent  of  Europe,  while  the  prevail- 
ing view  in  this  country  is  the  one  which  is  known  as 
the  Puritanical  view,  would  be  as  unjust  as  to  adopt 
and  enforce  the  Puritanical  view  while  the  people  were 
holding  the  continental  European  view.  In  either  case 
the  government  would  be  a  self-constituted  propagator 
of  a  particular  religious  doctrine  ;  and  more  than  that, 
it  would  be  putting  its  power  in  the  hands  of  a  minor- 
ity to  ofiend  and  wrong  the  majority.  It  is  no  part  of 
the  proper  function  of  government  to  propagate  any 
particular  form  of  Christian  doctrine,  whether  liberal 
or  rigid,  so  called.  To  say  that  in  adopting  any  Sun- 
day legislation  at  all  it  must  of  necessity  adopt  and 
propagate  the  one  view  or  the  other  ;  that  it  must  be 


m 


Duties  of  the  State  as  Christian.        371 

regarded  therefore  as  perfectl}^  free  to  make  its  choice 
between  the  two,  and  that  the  principles  of  hberty  re- 
quire it  to  choose  the  so-called  liberal  view,  is  to  mistake 
the  facts  in  the  case  and  the  proper  relation  of  the  gov- 
ernment to  the  whole  question."  The  fact  that  the 
Puritanical  view  has  been  the  prevailing  one  in  this 
countr}'  from  the  time  of  the  first  landing  on  the  banks 
of  James  River  and  Plymouth  Rock  cannot  be  ques- 
tioned. It  is  found  in  the  legislation  of  all  the  Colo- 
nies, of  all  the  original  States,  and  of  nearly  all  the 
other  States.  It  has  been  established  in  the  sentiments, 
traditions,  and  customs  of  the  people  from  the  begin- 
ning. That  this  view  has  been  the  prevailing  one  in 
this  country'  is  shown  \>y  the  fact  that  on  the  continent 
of  Europe,  it  is  known  and  designated,  not  as  the  Puri- 
tanical, but  as  the  English  and  American  view.  The 
government  has  not  been  free,  and  is  not  now  free  to 
make  any  choice  in  the  matter.  For  the  government 
to  adopt  and  enforce  any  other  view  of   the  Sabbath 

'  The  use  of  the  word  liberal,  in  connection  with  a  question 
of  truth  or  right,  is  mere  cant  ;  for  there  can  be  no  place  for 
liberality  in  the  determination  of  such  a  question.  Think  of 
a  surveyor  set  to  ascertain  the  exact  dimensions  of  a  piece  of 
ground  ;  or  of  an  engineer  sent  out  to  ascertain  the  exact  level 
at  which  a  section  of  railroad  should  be  laid  ;  or  of  a  chemist 
employed  to  find  the  exact  constituents  of  a  compound  body  ; 
appending  to  his  report  the  statement  that  he  had  taken  in 
a  large  amount  of  liberality  as  a  factor  in  the  investigation  ! 
That  very  admission  would  be  ground  enough  for  the  rejection 
of  his  whole  work  as  worthless.  To  confess  liability  to  error  is 
not  liberality  ;  it  is  honesty.  Liberalism  claims  to  have  gone 
beyond  the  limits  of  what  is  required  ;  Honesty  professes  that 
it  has  endeavored  to  come  up  to  those  limits.  Liberalism  is 
proud  ;  honesty  is  humble  ;  liberalism  is  boastful,  honesty  is 
modest ;  liberalism  is  censorious,  honesty  is  charitable  ;  liberal- 
ism is  the  pharisee  of  the  parable,  honesty  is  the  publican. 


372        Duties  of  the  State  as  Christian. 

than  the  one  which  prevails  among  its  Christian  citi- 
zens would  be  to  exercise  the  power  of  a  spiritua' 
despot. 

It  is  undoubtedly  true  that  a  part  of  the  population 
of  this  country,  not  by  any  means  inconsiderable  in 
point  of  numbers,  would  prefer  the  continental  Euro- 
pean mode  of  observing  the  Sabbath.  And  it  might 
be  pleaded  that  in  strict  justice  the  government  ought, 
in  its  own  conduct  and  in  the  regulations  it  prescribes, 
to  follow  a  middle  course  between  the  two  views. 
The  justice  of  this  plea  would  have  to  be  conceded, 
perhaps,  were  the  people  of  this  country  who  hold 
the  view  in  question  equal  in  numbers  to  those  who 
hold  the  Puritanical  view,  and  were  they  of  like  char- 
acter with  those  who  hold  the  other  view  in  Europe. 
But  the  equality  in  numbers  and  the  likeness  in  charac- 
ter are  both  wanting.  In  Europe  the  doctrine  of  the 
Sabbath  there  prevailing  is  held  considerately  by  the 
most  sincere  and  earnest  Christians.  They  regard  their 
doctrine  as  founded  on  important  Christian  principles. 
They  hold  that  the  observance  of  the  Lord's  day  as 
a  day  of  rest  and  public  worship  is  necessary  to  the 
highest  Christian  life,  and  therefore  obligatory  ;  the 
duty  arising  entirely  from  the  value  of  the  spiritual  end 
to  which  it  is  a  means,  and  not  in  any  degree  from  a 
sanctity  belonging  to  the  hours  of  the  day  in  them- 
selves. To  hold  that  the  day  now  possesses  a  holiness 
which  can  be  profaned  by  acts,  otherwise  allowable, 
even  if  done  through  inadvertence  or  an  error  in  reck- 
oning,— to  assume,  for  instance,  that  by  the  divine 
ordinance  the  day  was  made  to  begin  with  the  evening, 
and  then  hold,  that  to  engage  in  such  worldly  occupa- 
tions and  recreations  as  are  lawful  in  themselves,  from 
sunset  till  midnight  on  Saturday,  would  be  a  profana- 


Duties  of  the  State  as  Christian.        t^j^) 

tion,  the  sinfulness  of  which  could  not  be  blotted  out 
by  the  most  devout  and  scrupulous  observance  of  an 
equal  number  of  hours  after  sunset  on  Sunday  would 
be,  in  their  view,  to  go  back  into  the  bondage  of  the 
Old  Testament  ceremonial  law,  from  which  Christ 
made  his  people  free.  They  believe  that  in  this  doc- 
trine of  the  Christian  Sabbath  they  are  following  the 
most  eminent  reformers/  The  people  in  this  country, 
however,  who  desire  the  establishment  of  the  European 
Sunda}'  are  not  of  such  a  character ;  nor  is  their  conduct 
in  the  matter  governed  by  any  such  principles.  It  can 
hardly  be  regarded  as  a  breach  of  charity  to  say  that 
they  are,  with  slight  exceptions,  irreligious,  including 
in  their  number  all  that  are  positively  anti-Christian, 
and  a  large  proportion  of  the  vicious  and  criminal 
classes. 

The  government  possesses  a  positively  religious  char- 
acter ;  it  is  Christian,  and  to  modify  its  regulation  of 

'  A  note  made  by  the  late  Rev.  "William  B.  Sprague,  D.  D., 
of  Albauy,  N.  Y.,  of  a  visit  to  the  late  Dr.  Aug.  Neander  will 
serve  to  show  the  view  of  the  Sabbath  which  is  held  by  some  of 
the  most  eminent  Christians  in  Germany.     He  says  : 

"  Neander  was  the  first  person  upon  whom  I  called  at  Berlin. 
.  .  .  He  spoke  in  a  manner  that  indicated  the  highest  rev- 
erence and  respect  for  the  King,  and  when  I  asked  him  con- 
cerning the  King's  religious  character  he  remarked  that  he  had 
no  doubt  he  was  a  truly  pious  man.  I  expressed  some  astonish- 
ment at  that,  from  having  seen  it  stated  in  a  French  newspaper 
that  I  had  taken  up  that  he  attended  the  theatre  on  the  Sab- 
bath. '  But,'  says  Neander,  'I  suppose  you  know  that  the  same 
views  of  the  Sabbath  are  not  entertained  in  Germany  as  in  Eng- 
land and  America.  I  do  not  entertain  them  myself.  ...  I 
would  not  go  to  the  theatre  any  day  of  the  week,  but  there  is 
nothing  that  I  would  do  at  any  time  that  I  would  not  do  on 
Sunday,  if  convenience  required  it.'     .     .     . 

"Immediately  on  my  introduction  to  Neander  he  asked  me 


3  74       Duties  of  the  State  as  Christian. 

a  Christian  observance  in  accommodation  to  the  views 
of  the  irreligious  or  the  anti-Christian  would  be  the 
same  as  to  modify  the  syntax  and  orthography  of  its 
statute  books,  its  records,  and  public  documents  in  ac- 
commodation to  the  usages  of  the  illiterate  ;  or  to 
modify  its  laws  relating  to  property  in  accommodation 
to  the  doctrines  of  anarchists ;  or  to  modify  its  laws 
against  brutalit}^  in  accommodation  to  the  views  of 
those  who  frequent  the  prize-ring  and  the  dog-pit. 
The  government  being  Christian,  and  so  long  as  it  is 
Christian,  may  very  properly  make  accommodation 
between  the  different  views  on  the  positive  side  of  the 
question  ;  but  not  between  the  views  of  the  positive 
and  those  of  the  negative.  A  general  may  have  regard 
to  the  views  of  the  different  arms  of  the  service,  in 
disposing  his  forces  for  battle,  but  not  to  the  views 
of  the  enemy.  If  the  government  is  Christian,  the  anti- 
Christian  must  be  regarded  as  in  that  respect  an  enemy. 

if  I  would  dine  with  him  the  next  vSunday  ;  and  as  it  presented 
to  me  the  alternative  of  dining  in  a  Christian  family  or  in  a 
hotel,  I  had  no  scruples  in  accepting  the  invitation.  ...  In 
due  time  the  servant  announced  that  dinner  was  ready,  and 
what  was  my  astonishment  as  I  entered  the  dining-room  to 
find  as  many  guests  there  as  the  room  could  possibly  accommo- 
date. .  .  .  The  manner  in  which  the  afternoon  was  spent 
■was  quite  in  accordance  with  the  German  doctrine  in  respect  to 
the  Sabbath  ;  and  as  the  good-humored,  not  to  say  boisterous, 
demonstrations  were  all  in  German,  I  must  confess  that  I  was 
for  once  more  than  reconciled  to  my  ignorance  of  the  language. 
What  aggravated  the  case  to  me  was  that  I  had  no  reason  to 
doubt  that  the  dinner  part)'  had  been  made  on  my  account. 
.  I  am  sure  he  did  not  intend  to  do  violence  to  my  feel- 
ings, and  I  am  equally  sure  that  if  he  had  had  any  adequate 
appreciation  of  the  manner  in  which  we  regard  the  Sabbath,  I 
should  not  have  been  placed  in  a  situation  so  painful  to  me." 
—  Visits  to  Enrotean  Celebrities,  pp.  131-135. 


Duties  of  the  State  as  Christian.        375 

All}'  officer  in  the  civil  or  military  service  of  the 
government  who  assumes  that  the  government  is  desti- 
tute of  all  religious  character,  or  that  the  continental 
European  doctrine  of  the  Sabbath  is  the  established 
doctrine  of  this  government,  and,  upon  that  assumption, 
requires  his  subordinates  to  do  unnecessar}^  work  on 
Sunda}^  commits  an  offence  against  the  people  and  in- 
flicts a  wrong  upon  his  subordinates.  An  officer,  so 
offending,  ought  to  be  rebuked  and  restrained  by  his 
superiors. 

10.  To  require  that  all  teaching  in  high  schools, 
State  universities,  military  and  naval  academies 
be  in  accordance  with  the  fundamental  truths 
of  Christianity. — The  government  ought  to  pro- 
vide Christian  teaching  and  nurture  for  all  those 
citizens  to  whom  it  stands  in  loco  parentis.  This  duty 
we  have  already  considered  to  some  extent  (see  p. 
243),  but  we  proceed,  now,  further  to  say  that  the  State 
is  under  obligation  to  require  that  all  the  teaching  in 
the  high  schools,  universities,  military  and  naval  acad- 
emies, be  in  accordance  with  the  fundamental  truths 
of  Christianity.  Here  is  ground  upon  which  there 
can  be  no  neutralit3\  A  large  range  of  subjects  is 
taught  in  these  institutions,  in  which  the  teaching 
must  be  either  for  or  against  Christianity.  Theism  ;  a 
divine  production  of  all  finite  things  (in  one  way  or 
another)  ;  the  dependence  of  nature's  laws  upon  the 
divine  will  for  their  existence  and  their  constancy  ;  the 
distinction  between  matter  and  spirit,  body  and  mind  ; 
are  fundamental  postulates  of  Christianity.  If  these 
be  denied  Christianity  cannot  be  believed  ;  and  it  is 
impossible  to  teach  Physics,  Metaphysics,  Philosophy, 
History,  Geography,  Chemistry,  Astronomy,  or  Biol- 
og}^  as  they  ought  to  be  taught,  without  making  af- 


376       Duties  of  the  State  as  Christian. 

firmations  that  involve  the  acceptance  or  rejection  of 
one  or  another  of  the  postulates  mentioned.  To  teach 
any  of  these  subjects  and  make  no  affirmations  on  these 
postulates,  were  the  same  as  to  teach  optics  or  acoustics 
and  make  no  affirmation  upon  the  doctrine  of  vibrations  ; 
or  to  teach  Chemistry  and  make  no  affirmation  on  the 
doctrine  of  atoms  ;  or  to  teach  Biology  and  make  no 
affirmation  on  the  origin  of  life.  A  State  university 
that  should  so  teach  on  these  subjects  would  speedily 
fall  into  the  lowest  rank,  and  would  soon  become 
extinct.  Since,  therefore,  there  must  be  teaching  in 
these  institutions  which  is  either  for  or  against  Chris- 
tianity, the  State,  in  a  Christian  land,  is  bound  to 
require  that  the  teaching  be  not  in  contradiction  to, 
but  in  conformity  with  the  fundamental  truths  of  Chris- 
tianity. The  matter  should  not  be  left  to  accident, 
with  the  secret  hope  that  it  will  turn  out  favorably  to 
the  Christian  public.  The  State  university,  however 
endowed,  has  no  more  independence  of  the  people  than 
the  public  school,  for  there  is  no  mystic  source  of 
revenue,  in  the  heights  of  heaven  or  in  the  depths  of 
ocean,  whence  the  State  may  obtain  monej^,  and  leave 
untouched  the  amount  the  people  have  saved  from  the 
earnings  of  their  toil.  Every  cent  of  the  funds  of  the 
State  university,  whatever  maj^  be  the  immediate  source, 
has  come  out  of  the  pockets  of  the  people,  just  as 
really  as  though  it  had  been  raised  by  direct  taxation  ; 
and  to  spend  the  money  of  a  Christian  people  for  the 
support  of  a  state  university  and  not  give  positive 
legislative  guaranty  that  the  teaching  therein  shall  not 
contradict  the  truths  of  the  Christian  religion,  merely 
hoping  that  it  will  turn  out  favorably  to  them,  were  as 
great  a  wrong  as  it  would  be  to  take  the  people's  money 
out  of  the  treasury  of  the  State  and  lend  it  without 


• 


Duties  of  the  State  as  Christian.       2>77 

taking  note  or  security,  hoping  that  the  borrower  when 
the  time  of  re-payment  comes  will  be  found  in  such  a 
financial  condition,  and  in  such  a  moral  mood,  that  the 
transaction  will  inflict  no  wrong  upon  the  people. 

Furthermore,  when  Christian  people  pay  their  taxes 
for  the  support  of  State  schools,  and  a  number  of  them, 
in  addition  to  that,  expend  large  sums  of  money  for 
the  founding  of  institutions  of  learning  in  which  they 
shall  have  the  guaranty  in  question,  it  cannot  be  just 
for  the  State  to  use  the  proceeds  of  taxation  to  institute 
a  competition  wdiich  will  tend  to  cripple  or  ruin  those 
institutions.  Still  greater  will  be  the  injustice  if  ad- 
vantage should  be  taken  of  the  special  interest  of  a 
Christian  people  in  institutions  of  their  own  founding, 
to  convert  the  State  university  into  the  preserve  of  a 
class,  composed  of  atheists,  agnostics,  and  the  irreli- 
gious, to  be  managed  in  accordance  with  their  peculiar 
views  on  the  subject  of  religion. 

If  persons,  belonging  to  this  class,  desire  an  institu- 
tion of  learning  in  which  all  the  teaching  shall  be  in 
accordance  with  their  views,  no  one  will  deny  their 
right  to  found  such  an  institution.  Let  the  State  grant 
them  a  charter  ;  let  them  endow  the  institution  wdth 
their  own  money,  and  let  them  proclaim  openly  its 
object  ;  but  let  them  not  attempt  to  accomplish 
their  purpose,  covertly  and  cheaply,  b}'  the  use  of 
funds  which  have  been  derived,  almost  wholly,  from  a 
Christian  public.  Even  if  the  State  w^ere  not  Christian, 
if  it  were  neutral  on  the  subject  of  religion,  the  effort 
to  make  the  principles  of  atheism  rule  the  teaching  in 
a  State  university  would  be  a  violation  of  right.  In 
that  case,  the  teaching  ought  to  be  perfectly  neutral, 
which,  as  we  have  shown,  would  be  an  impossibilit)\ 
But  a  State,  composed  of  Christian  people,  as  we  have 


T^J^        Duties  of  the  Stale  as  Christ? an. 

also  shown,  is  not,  and  cannot  be,  neutral ;  it  is,  and 
of  necessity  must  be  Christian. 

If  it  be  said  that  Christian  people  are  in  the  majority 
and  have  only  themselves  to  blame  for  the  wrongs  the}' 
suffer,  it  is  to  be  replied  that  when  they  express  their 
will  by  the  ballot  the  issue  is  always  complicated  with 
other  political  questions  ;  that  they  share  in  the  general 
confusion  of  ideas  on  the  relation  of  religion  to  civil 
government  ;  and  that  a  zealous  minority  may  ver\' 
easily  avail  itself  of  these  circumstances  to  exercise 
over  them  the  power  of  a  despot.  Despots  have  al- 
ways been  a  minority,  and  they  have  always  established 
their  power  by  taking  advantage  of  favoring  circum- 
stances. Mere  opportunity  does  not  make  despotism 
right. 

Large  accumulations  of  wealth  cannot  be  expected  to 
endure  in  this  country  beyond  two  or  three  generations, 
neither  can  they  be  used  to  found  a  hereditary  aristoc- 
racy ;  the  Constitution  of  the  United  States  having 
prohibited  both  the  United  States  and  the  States  grant- 
ing any  title  of  nobility.  There  will  always,  therefore, 
be  a  strong  tendency  to  emplo}'  superabundant  wealth 
in  the  founding  and  endowment  of  institutions  of  charity 
and  learning  ;  and  the  history  of  the  higher  education 
in  this  country  amply  sustains  the  opinion,  that  private 
munificence  will  be  a  sufficient  reliance  for  the  purposes 
of  such  education.  The  State  university  is  in  fact  of 
sentimental  origin.  It  was  provided  to  meet  no  real  want, 
or  at  best,  only  a  prospective  want,  which  was  already 
being  provided  for  by  private  enterprise.  The  older 
States,  with  their  provisions,  privately  made,  Massachu- 
setts, with  her  Harvard,  Amherst,  and  Williams  ;  Con- 
necticut, with  her  Yale  ;  Rhode  Island,  with  her  Brown  ; 
New  York,  with  her  Columbia,  Union,  Hamilton,  and 


Duties  of  the  State  as  Christiati.        379 

Cornell  ;  New  Jersey,  with  her  Princeton  and  Rutgers  ; 
and  Marj'land,  with  her  Johns  Hopkins  need,  no  State 
university.  If  it  be  admitted  that,  where  there  is  a 
State  university  of  high  rank,  no  other  similar  institu- 
tion is  needed  ;  it  must  be  admitted  also,  that  the  exist- 
ence of  such  an  institution  will  tend  to  prevent  the  flow 
of  private  wealth  into  educational  channels.  It  may 
be  doubted  whether  Michigan,  with  her  Ann  Arbor, 
will  ever  have  an  institution  of  learning,  privately 
founded,  equal  in  endowment  and  equipment  to  Chi- 
cago University  in  Illinois  ;  which,  considering  the 
exposure  of  a  State  institution  to  political  and  anti- 
Christian  influences  ;  and  weighing  justly  all  the  other 
considerations  that  enter  into  the  question,  can  hardly 
be  regarded  as  the  best  provision  for  the  higher  educa- 
tion of  a  Christian  people. 

If,  however,  a  State  could  organize  its  university  so 
as  to  be  entirely  free  from  the  influence  of  State  politics, 
and  should  give  guaranty  that  the  teaching  therein 
should  not  be  subversive  of  Christianity,  the  abundant 
funds  available  to  put  it,  at  once,  in  the  condition  of 
the  highest  efiiciency,  would  be  an  advantage. 

A  further  advantage  might  then  be  easily  obtained 
by  the  adoption  of  a  system  which  would  bring  all  the 
private  institutions  into  some  sort  of  relation  to  the 
State  institution,  such  as  that  of  colleges  to  a  univer- 
sity, thus  specializing  the  work,  getting  the  utmost 
benefit  from  the  expenditure,  and  making,  of  the  whole, 
one  true  university.  Or,  that  failing,  then,  if  the  State 
institution,  and  one  or  more  of  the  private  institutions, 
should  be  made  universities  in  reality  as  well  as  in 
name,  their  competition  would  act  as  a  perpetual  stimu- 
lus, inciting  all  to  the  attainment  of  the  highest  excel- 
lence. 


380  Conclusion. 


The  contingencies,  in  which  the  State  university  may 
be  so  managed  as  to  inflict  injustice  upon  Christian  peo- 
ple, are  so  Hkely  to  occur,  that  the  State  ought,  either 
not  to  establish  such  an  institution,  or  ought,  in  estab- 
lishing it,  to  adopt  legislative  safeguards  sufficient  to 
prevent  any  such  infliction. 

But,  the  question  of  justice  aside,  when  education 
ascends  above  the  requirements  of  merely  mundane 
utility,  and  aims  at  culture,  not  in  the  vulgar,  but  in 
the  full  and  proper  sense  of  the  word — the  development 
of  a  perfect  man, — it  enters  the  domain  of  religion  ; 
just  as  the  blade,  springing  up  from  the  buried  seed, 
enters  the  domain  of  light.  To  exclude  religion  from 
such  education  would  be  to  exclude  the  possibility 
of  the  education  itself.  As  well  attempt  to  produce 
a  perfect  development  of  plant  or  animal  without  sun- 
light, as  to  produce  a  perfect  development  of  man 
without  the  religion  of  Him  who  is  ' '  the  light  of  the 
world." 


CHAPTER  XX. 

CONC1.USION. 

The  survey  we  have  taken  of  the  relation  of  religion 
to  civil  government  will  justify  us,  we  think,  in  saying 
that  in  the  United  States  of  America  religious  liberty 
has  made  its  farthest  advancement  ;  and  that,  a  few 
of  the  older  States  being  excepted,  has  reached  the  ul- 
timate stage  of  its  progress.  The  State  is  without  a 
Church,  but  not  without  a  religion.  The  government 
is  Christian,  but  is  not  sectarian  ;  nor  is  it  an  oppressor 


1 


Conclusioji.  381 

of  its  non-Christian  citizens.  It  exercises  a  just  regard 
for  the  feelings  and  convictions  of  the  unbeliever,  as 
well  as  for  those  of  the  believer  ;  indeed,  it  has  come 
to  be  the  case  in  some  of  the  younger  States,  b}'  reason 
of  the  confused  ideas  and  inchoate  theories  of  some 
Christian  people,  that  if  there  is  any  difference  in  its 
treatment  of  the  two  parties  it  is  in  favor  of  the  former 
rather  than  the  latter. 

Having  dislodged  injustice  from  its  stronghold  in 
that  borderland  where  the  domain  of  religion  overlaps 
that  of  civil  government,  we  may  cherish  the  hope 
that  our  government  will  maintain  the  purest  justice 
in  all  else,  and  thus  become  strong  and  enduring.  As 
the  atoms  of  the  opaque  and  amorphous  rock,  coming 
out  of  solution  or  fusion,  form  the  crystal,  so  the  prin- 
ciples of  libert)',  coming  down  to  us  out  of  the  past 
ages,  have  given  us  a  political  structure,  beautiful  in 
its  form,  strong  in  its  constitution,  and  open  to  the 
light.  Like  the  stone  which  Nebuchadnezzar  saw  in  his 
dream,  "cut  out  without  hands,"  it  has  grown  and 
become  a  great  mountain.  We  may  not  expect,  or 
even  desire,  that  like  that  mountain,  it  shall  fill  the 
whole  earth,  but  we  may  expect  that  it  will  grow 
wider-based  and  higher  as  the  years  go  on.  It  ma}- 
well  excite  our  patriotic  admiration  as  we  behold  it 
crowned,  not  with  the  frowning  battlements  and  black 
enginery  of  war,  but  with  the  white-walled  temple  of 
peace,  sparkling  with  the  light  that  beams  down  from 
the  heavenly  habitations  of  righteousness,  and  sending 
that  light  abroad  over  the  earth  as  a  hope-inspiring 
illumination. 

So  long  as  it  shall  continue  to  be  truly  Christian 
and  scrupulously  just,  deriving  its  character  from  a 
people  who  love  the  Lord  their  God,   and  delight  in 


382  Co7iclMsion. 

obedience  to  his  righteous  law,  it  may  be  looked  upon 
as  at  least  one  of  the  anti-types  of  that  \io\y  mountain 
which  the  inspired  singer  of  Israel  praised  as  "  the  joy 
of  the  whole  earth. ' ' 


I 


3 


INDEX. 


A 


Abbot,  Francis,  on  the  religious 
amendment  of  the  Constitu- 
tion of  the  United  States,  333 

Abbot,  Henry  M.,  of  North 
Carolina,  on  the  exclusion  of  a 
religious  test  from  the  Consti- 
tution of  the  United  States, 
216 

Academies,  State  and  Federal, 
teaching  in,  to  be  in  accord- 
ance with  the  principles  of 
Christianity,  375 

Alaska  Indians,  the  North  Ameri- 
can Commercial  Co.  required 
by  the  United  States  to  pro- 
vide a  house  of  worship  for, 
246 

Amendment  of  the  Constitution 
of  the  United  States,  proposed 
religious,  203,  230  ;  proposed, 
to  prohibit  appropriations  for 
sectarian  purposes,  346 

American  Indians,  contract 
schools  for,  245,  345,  348 

Anderson,  D.U.,  Rev.  M.  B.,  on 
blasphemy  and  Sabbath  dese- 
cration, 295,  352 

Animals,  motive  in  humane  treat- 
ment of,  310  ;  basis  of  laws  on 
cruelty  to,  342 

Antiquated  theories  of  the  State, 

Appropriations  for  sectarian  pur- 
poses, 346 

Army  and  Navy,  Sunday  in,  31S, 
375 


Arnold,  Dr.  Thomas,  theory  of 
the  State,  172 

Atheism,  demand  for  tlie  estab- 
lishment of,  332 

Atheists,  see  "  Unbelievers" 


B 


Backus,  Rev.  M.,  of  Massachu- 
setts, on  the  omission  of  a 
religious  test  from  the  Consti- 
tution of  the  United  States, 
215 

Bagehot,  Walter,  on  Dr.  Arnold's 
theory  of  the  State,  174  ;  on 
the  savage  virtues  which  tend 
to  war,  195 

Ballot,  use  of,  a  privilege  con- 
ferred by  the  sovereign,  192  ; 
"  the  peaceful  arbitrament  of," 

195 

Baltimore,  Lord,  ist,  2d,  71 

Baptism,  of  children,  required  by 
law,  15  ;  controverting  the 
doctrine  of,  forbidden  in  the 
colony  of  Alassachusetts  Bay, 
on  pain  of  banishment,  29 

Baptists,  object  to  the  terms  of 
toleration  in  Massachusetts 
Bay,  38  ;  petition  the  Conti- 
nental Congress  for  relief,  39 

Bequests,  to  found  a  trust  for 
pious  uses,  not  to  be  protected, 
355  ;  hostile  to  Christianity, 
not  to  be  protected,  362 

Berkeley,  Sir  William,  on  the 
church,  free  schools,  and 
printing,  16 


383 


384 


Index. 


Bible,  in  the  public  schools,  see 
"  Schools  "  ;  exempt  from 
execution,  and  to  be  given  to 
apprentices,  315  ;  to  be  given 
to  convicts,  315,  317 

Bill  of  Rights,  in  the  Constitu- 
tion of  Massachusetts,  104, 
no,  252  ;  not  in  the  Constitu- 
tion of  the  United  States,  220, 
221 

Blasphemy,  to  be  punished  with 
death,  42,  73  ;  in  the  common 
law,  127,   130,   134,  295,   296, 

305 
Bluntschli,  Prof.  J.  K.,  theory  of 

the  State,  18  r 
Brewer,  Justice,  on  the  Christian 

character  of   the  government, 

144 
Bryce,  James,  on  religion  in  the 
United  States,  257 


Calhoun,  John  C,  resolutions 
offered  by  in  the  Senate,  1833, 
226 

California,  comparative  moral 
and  religious  condition  of,  235  ; 
repealed  Sunday  laws,  354 

Calvert,  Sir  George,  and  Ce- 
cilius,  71,  73 

Carolina,  Charter  of,  79  ;  funda- 
mental constitutions  of,  81  ; 
Church  of  England  established 
in  colony  of,  79,  81,  82  ;  dis- 
belief in  God,  a  disqualification 
for  office,  82  ;  South,  the 
Christian  Protestant  religion 
established  in  the  State  of, 
xoi  ;  resolutions  of  secession, 
227 

Cases  cited  :  Andrew  v.  New 
York  Bible  and  Prayer  Book 
Society,  357  ;  Ashley  v.  Wel- 
lington, 108  ;  Avery  v.  Tyring- 
ham,  109 ;  Baker  et  al.  v. 
Fales,  no  ;  Baxter  v.  Peo- 
ple, 326  ;  Bloom  v.  Richards, 
302,     312,    315  ;       Boutell    v. 


Cowdin,  109 ;  Brunswick  v. 
Dunham,  198  ;  Burr  v.  First 
Parish  of  Sandwich,  109 ; 
Cochran  v.  Camden,  108  ; 
Connolly  v.  City  of  Boston, 
292  ;  Dillingham  v.  Snow,  108  ; 
Donahue  v.  Richards  et  al., 
261,  282  ;  Escanaba  Co.  v. 
Chicago,  116  ;  Godwin  tV  (7/.  v. 
Lunan,  23  ;  Huse  v.  Glover, 
116;  Hutchinson  et  al.  v. 
Thompson  etal.,  116  ;  Jeftsz/. 
York,  109  ;  Johnson  v.  Com- 
monwealth, 132,  353  ;  King, 
hi  re  Circuit  Court,  W.  D., 
Tennessee,  95  ;  Lessees  of 
Thomas  Cochran's  Heirs  v. 
David  Loring,  116;  Linden- 
niullerz'.  People,  128  ;  McCoy, 
V.  City  of  Chicago,  350  ;  Mc- 
Gatrick  v.  Wasson,  303 ; 
Menard  v.  Aspasia,  117  ; 
Minor  et  al.  v.  Board  of  Edu- 
cation of  the  City  of  Cincin- 
nati, 261,  265,  271,  315; 
Nichols  V.  School  Directors, 
280  ;  North  v.  Trustees  of  the 
University  of  Illinois,  264, 
285  ;  Oaks  v.  Hill,  109  ; 
Parker  v.  May,  109 ;  People 
V.  Ruggles,  127,  129,  145,  306  ; 
Permoli  v.  Municipality  of 
New  Orleans,  113,  117;  Pol- 
lard's Lessees  v.  Hagan,  117  ; 
Rector  etc.  of  Holy  Trinity 
Church  V.  United  States,  144  ; 
Richmond  v.  Moore,  134,  300, 
312,  316;  Sands  v.  Manistee 
River  Improvement  Co.,  117  ; 
Scammon  v.  City  of  Chicago, 
324;  Shover  v.  State,  134; 
Simons,  Ex.  v.  Gratts,  339 ; 
Smith  V.  Boston  &  Maine  Rail- 
road, 293  ;  Sparrow  v.  Wood, 
109  ;  Specht  v.  Common- 
wealth, 304  ;  State  v.  Ambs, 
132  ;  State  v.  Chandler,  134, 
iS^'i  307  ;  Stebbins  v.  Jeu" 
nings,  log;  Strader  et  al.  v. 
Graham,     114;      Thomas    v. 


hidex. 


385 


Cases  cited — Continued. 

Hinsdale,  325  ;  United  States 
V.  World's  Columbian  Ex- 
position etal.,  320 ;  Updegraph 
V.  Commonwealth,  130,  145, 
306  ;  Vidal  et  al.  v.  Executors 
of  Stephen  Girard,  139,  145, 
362  ;  Warner  v.  Smith,  244  ; 
Weiss  et  al.  v.  Board  of  School 
Directors,  District  No.  8,  City 
of  Edgerton,  261,  272,  278, 
289 ;  Weld  V.  May,  109  ; 
Williamette  Iron  and  Bridge 
Co.  V.  Hatch,  113;  Williams 
and  Hogg  v.  Zanesville  Canal 
and  Manufacturing  Co.,  1 14; 
World's  Columbian  Exposition 
V.  United  States,  321 

Catechising,  required  by  law,  9, 
37,  50 

Catholic,  Roman  Church,  mem- 
bers of  not  to  be  freemen  or 
eligible  to  office  :  Colonies, 
21,  29,  41,  59,  64,  68,  71,  77, 
82,  84  ;  States,  97,  99,  loi, 
103,  104,  105  ;  toleration  by, 
in  Maryland,  73,  76 ;  and 
public  schools,  248,  260,  272  ; 
and  public  funds,  348  ;  and 
Indian  contract  schools,  348  ; 
priests  of,  to  be  banished,  12, 
37 

Christian  religion,  the,  in  the 
Roman  Empire  and  European 
States,  3  ;  established  in  all 
the  Colonies,  6-85  ;  in  States, 
97,  98,  100,  loi,  104  ;  enters 
necessarily  into  the  civil  insti- 
tutions of  a  Christian  people, 

124,  290  ;  in  the  common  law, 

125,  126,  129,  131,  141,  142, 
144,  146,  295,  296,  359  ;  de- 
cisions of  the  State  courts  on, 
128  ;  of  the  United  States  Su- 
preme Court  on,  139  ;  not  to 
be  fostered  by  the  State,  177, 
341  ;  to  receive  favor  and 
preference,  349  ;  adherents  of, 
to  be  protected  from  offence, 
352  ;    also,  in  the  training  of 


their  children,  353  ;  trusts 
hostile  to,  not  to  be  protected, 

362  ;  practices  of,  in  public 
bodies,  not  to  be  discontinued, 

363  ;  the  moral  code  of,  to  be 
the  basis  of  State  action,  367  ; 
no  teaching,  inconsistent  with 
the  principle  of,  to  be  allowed 
in  State  schools,  academies,  col- 
leges, and  universities,  375 

Church,  attendance  upon,  com- 
pulsory, 7,  8,  20,  22,  25,  39, 
48,  53,  57  ;  delinquents  to  be 
searched  for,  26,  33,  40,  43, 49  ; 
union  of,  with  the  States,  not 
prohibited  by  the  constitution 
of  the  United  States,  94,  95  ; 
taxation  of  property  of,  298, 
333i  365.  Roman  Catholic, 
see  "  Catholic" 

Civil  War,  in  the  United  States, 
and  the  Religious  Amendment, 
230,237;  and  the  constitution, 
227,  230 

Clayton,  Hon.  John  M.,  on 
blasphemy,  134  ;  answer  of,  to 
Jefferson's  argument,  156 

Colleges  of  the  State,  teaching 
in,  to  be  in  accordance  with  the 
principles  of  Christianity,  375 

Common  law,  120  ;  Christianity 
in,  see  ',  Christian  Religion"  ; 
Sunday  in,  324 

Confederation,  of  Neiv  England 
Colonies,  58  ;  only  church  mem- 
bers to  be  free  burgesses  in, 
58  ;  the  purity  of  religion  to  be 
maintained  and  the  opposite  to 
be  suppressed,  59  ;  Word  of 
God,  to  be  the  fundamental 
law  of,  59  ;  heresy  to  be  sup- 
pressed, 60  ;  the  church,  to  be 
supported  by  tax,  61  ;  Quakers 
to  be  banished  from,  61  ;  of 
the  United  States,  no  recogni- 
tion of  the  Divine  Being  in  the 
Articles  of,  221 

Connecticut,  Colony,  44  :  Funda- 
mental Orders  of,  45  ;  God's 
Word,  the  fundamental  law  of, 


386 


Index. 


Connecticut — Continued. 

45  !  Quakers  to  be  banished 
from,  45  ;  contempt  of  God's 
Word,  ministers  and  ordi- 
nances, to  be  punished,  46  ; 
attendance  upon  public  wor- 
ship, compulsory,  47,  48,  53 ; 
Synod  called  by,  to  settle  doc- 
trines of  theology,  48  ;  Sunday 
in,  48,  52  ;  catechising,  re- 
quired by  law,  50  ;  towns  of, 
required  to  provide  a  ministry 
of  the  gospel,  51  ;  act  of  toler- 
ation, 58  ;  State,  charter  of, 
1662,  the  organic  law  of,  till 
1818,  58 ;  attendance  upon 
public  worship  compulsory,  97 

Constitution,  of  tlic  United  Slates, 
92  ;  the  Divine  Name  not 
mentioned  in,  92,  203  ;  Article 
VI.  and  Amendment  I.,  Article 
I.  do  not  apply  to  the  States, 
94,  95,  96-11 1  ;  amendments 
of,  proposed,  the  religious,  203, 
230 ;  on  sectarian  appropria- 
tions, 346  ;  no  Bill  of  Rights 
in,  220,  221  ;  not  a  compact, 
225  ;  Sunday  in,  317  ;  of  the 
German  Empire,  the  Divine 
Name  not  mentioned  in,  228 

Convention,  the  Constitutional, 
of  the  United  States,  sessions 
of,  not  opened  with  prayer, 
208  :  of  Massachusetts,  on  the 
exclusion  of  a  religious  test 
from  the  Constitution  of  the 
United  States,  212  ;  of  North 
Carolina  on,  216 

Convicts,  to  be  supplied  with  a 
Bible,  315,  317  ;  not  to  be  re- 
quired to  labor  on  Sunday,  316  ; 
to  have  the  services  of  a  chap- 
lain, 315,  317 

Cooley,  Hon.  Thomas  M.,  on 
sovereignty,  191  ;  on  Chris- 
tianity in  the  law  of  the  land, 
296  ;  on  blasphemy,  296,  305  ; 
on  the  appointment  of  Thanks- 
giving and  fast  days,  of  chap- 
lains, the  opening  of   legisla- 


tive sessions  with  prayer,  and 
the  reading  of  the  Scriptures, 
and  the  exemption  of  church 
property  from  taxation,  298  ; 
on  the  basis  of  Sunday  laws, 

311 
Cruelty  to  animals,  why  punished, 
342 

D 

Davenport,  Rev.  John,  founder 
of  the  colony  of  New  Haven, 

53 

Death,  the  penalty,  for  the  re- 
turning of  Quakers  after  ban- 
ishment, 33  ;  for  blasphemy, 
42,  74  ;  for  burglary  and  rob- 
bery on  Sunday,  third  offence, 
46  ;  for  presumptuous  profan- 
ing of  the  Lord's  Day,  56 

Delaware,  profession  of  faith  in 
the  doctrine  of  the  Trinity  and 
of  the  inspiration  of  the  vScrip- 
tures,  a  qualification  for  office 
in,  100 

Divorce  and  marriage,  action  of 
the  State  on,  to  be  conformed 
to  the  law  of  Christ,  368 

Drunkenness,  to  be  punished,  7, 
19,  69 

Dwight,  Theodore  W.,  LL.D., 
on  Christianity  in  the  civil 
institutions  of  the  United 
States,  126 


E 


Episcopal    Church,     Protestant, 

allowed  to  share  in  the  taxes 

in  Massachusetts,  37 
Equity,   incorporates   the  moral 

code   of   a   people   with   their 

laws,  122 
Erastianism,  171 
Ethics,  code  of  the  State,  none 

other  than  that  of  the  people, 

367  . 
Exceptions  to  the  limitations  of 
the  religious    function  of    the 
government,  243 


i 


Index. 


387 


Exemption   of    church    property 

from  taxation,  365 
Expeditions  of  exploration,  early, 

had  a  religious  object,  3 


Fasting,  observance  of  public 
days  of,  compulsory,  16,  27, 
30,  47,  57,  97  ;  Judge  Cooley, 
on  the  appointment  of,  298 

Fostering  of  Christianity,  no 
part  of  the  proper  functions  of 
the  government,  177,  341 

Franklin,  Benjamin,  resolution 
of,  on  the  opening  of  the  Con- 
stitutional Convention  with 
prayer,  93,  208  ;  speech  of, 
on  the  resolution,  20S  ;  letter 
to  Thomas  Paine,  206 


Genesis  of  the  State,  197 
Georgia,  charter  of,  83  ;    cession 

of   Southwestern   Territory   to 

the  United  States,  112 
Gilbert,  Sir  H.,  expedition  of,  4 
Girard,  Stephen,  will  case,  139 
Gladstone,  Hon.  W.    E.,   on  the 

union   of   Church   and    State, 

T73,  187 
Gorges,  Sir  Ferdinando,  charter 

of,  for  Maine,  40 
Government,  civil,  of  the  United 

States,  necessarily  legally,  and 

rightly  Christian,  164,  299 


H 


Hagans,  Hon.  M.  B.,  on  the 
Bible  in  the  public  schools, 
266  ;  on  the  personality  of  the 
State,  238 

Hale,  Sir  Matthew,  on  the  com- 
mon law,  121  ;  on  Christianity 
in, 125,  149,  150,  155,  161. 

Hamilton,  Alexander,  on  tlie 
omission  of  a  recognition  of  the 
divine  Being  in  the  constitu- 


tion, 204  ;  on  the  resolution  of 
Dr.  Franklin,  proposing  that 
the  sessions  of  the  constitu- 
tional convention  open  with 
prayer,  210 

Hjaltalan,  J.  A.,  on  education  in 
Iceland,  259 

Humanity  ;  the  fostering  of,  by 
the  State,  342 


Iceland  ;  education  in,  258 

Illinois  ;  territorial  government 
of,  and  the  ordinance  of  1787, 
112  ;  tolls  at  locks  in  the  Illi- 
nois River  and  the  Ordinance 
of  17S7,  116  ;  attendance  upon 
chapel  exercises  in  the  Uni- 
versity of,  285  ;  statute  of  on 
Sunday,  300 ;  prohibits  labor 
of  convicts  on  Sunday,  316 ; 
English  the  established  lan- 
guage of,  350 

Incorjioration  ;  to  be  granted  to 
churches,  theological  schools, 
and  missionary  societies ;  also 
to  societies  of  Jews,  Moham- 
medans, pagans,  and  atheists, 
for  the  promulgation  of  their 
doctrines,  363 

Indiana  ;  the  territorial  govern- 
ment of,  and  the  Ordinance  of 
1787,  112,  119 

Indians  ;  American,  contract 
schools  for,  245,  345,  348  ;  of 
Alaska,  to  be  provided  with 
houses  of  worship  by  require- 
ment of  the  United  States,  246 

Iredell,  James,  of  North  Caro- 
lina, on  the  exclusion  of  a 
religious  test  from  the  consti- 
tution of  the  United  States, 
217 


Jefferson,  Thomas,  letter  to  Dr. 
Priestley,  had  no  ]iart  in  fram- 
ing   the    constitution    of    the 


;88 


Index. 


United  States,  93  ;  first  mes- 
sage of,  as  president,  g3  ;  letter 
of,  to  Maj.  John  Cartwright, 
146  ;  controverts  the  doctrine 
that  Christianity  is  part  of  the 
common  law,  147  ;  is  answered 
by  Clayton,  156 

Jews,  observance  of  Saturday  by 
the,  cannot  delay  a  proceeding 
in  court,  339  ;  to  be  granted 
protection  in  the  exercise  of 
religion,  351  ;  and  incorpora- 
tion, 363  ;  exemption  of  syna- 
gogues from  taxation,  not  to 
foster  the  religion  of,  365 

Jurists,  opinions  of,  on  the  rela- 
tion of  Christianity  to  civil 
government  in  the  United 
States,  125,  296,  298,  305, 
311 

K 

Kentucky,  resolutions  of  1798, 
223 


Language,  the  English  estab- 
lished, 350 

Law,  the  conwioii,  see  "Com- 
mon "  ;  Christianity  in,  see 
"Christianity";  of  God,  the 
fundamental  civil,  45,  48,  54, 
55,  59  ;  authority  of,  not  ac- 
knowledged in  the  constitution 
of  the  United  States,  230,  232 

League  Liberal,  the  demands  of, 

333 

Liberalism,  cant  in  the  profes- 
sions of,  371 

Liberty  of  belief  and  unbelief, 
full,  to  be  granted  in  a  Chris- 
tian State,  290 ;  does  not  re- 
move Christian  character  from 
the  State,  292,  308 

Limitations  to  the  religious  func- 
tions of  the  government,  177  ; 
exceptions  to,  243 

Lincoln,     Abraham,     president. 


order  of,  for  the  observance  of 
Sunday  in  the  army  and  navy, 
318 

Locke,  John,  author  of  the  Fun- 
da  )iiental  Constitutions  of  Caro- 
lina, 81 

Lord's  Day,  see  "  Sunday." 

M 

Macaulay,  T.  B.,  on  paternalism, 
174;  on  the  personality  of  the 
State,  189  ;  on  the  functions  of 
government,  262 

Maine,  colony  of,  40  ;  united  to 
the  colony  of  Massachusetts 
Bay,  41 

Maine,  Sir  Henry  J.  S.,  on  the 
development  of  law,  123 

Mansfield,  W.  M.  Lord,  on  the 
common  law,  and  religion  in 
the,   125,    149,   150,   156,   161, 

163,  359 

Marriage,  law  of,  to  conform  to 
the  law  of  Christ,  367  ;  more 
than  contract,  368 

Maitin,  Luther,  on  the  exclusion 
of  a  religious  test  from  the  con- 
stitution of  the  United  States, 
204 

Maryland,  Colony,  71  ;  Act  of 
toleration,  73  ;  repealed,  77  ; 
re-enacted,  78  ;  blasphemy, 
etc.,  to  be  punished  with  death, 
74 ;  Sunday  in,  75,  7S  ;  the 
Church  of  England  established 
in,  78  ;  State,  the  Christian 
religion  to  be  supported  by 
taxes,  lor 

Mason,  Capt.  John,  a  founder  of 
the  colony  of  Maine,  40 

Massachusetts  Bay,  Colony  of, 
27  ;  only  church  members  ad- 
mitted to  the  freedom  of,  28  ; 
Sabl)ath  in,  28,  31,  32,  33,  35, 

39  ;  breakers  of,  to  be  put  in  a 
cage,  34  ;    to  be  searched  for, 

40  ;  establishment  and  support 
of  the  church  compidsory,  28, 
35.   37.   39  >    Koman   Catholic 


Index. 


389 


Massachusetts  Bay — Conthtued. 
Church,  not  tolerated,  29  ; 
priests  and  Jesuits  to  be  ban- 
ished, under  penalty  of  im- 
prisonment for  life  for  return, 
37  ;  Baptists,  opposing  or  con- 
demning infant  baptism,  to  be 
banished,  29  ;  received  tolera- 
tion, 3S  ;  complained  of  terms, 
to  the  Continental  congress, 
39  ;  contempt  of  God's  Word, 
of  the  ministers,  and  ordinances 
of  religion,  to  be  punished,  29  ; 
attendance  upon  the  ministry 
of  the  Word,  compulsory,  30, 
39  ;  attendance  at  an  unauthor- 
ized place  of  meeting  forbid- 
den, 36  ;  public  and  private 
propagation  of  heresy  to  be 
punished,  30  ;  Pyncheon's 
book,  burned  on  Boston  Com- 
mon, 31  ;  Quakers,  to  be  ban- 
ished, and  to  suffer  death  upon 
returning,  33  ;  four  hanged  on 
Boston  Common,  33  ;  impor- 
tation of  forbidden,  34  ;  granted 
toleration,  38  ;  catechising  of 
children  and  servants,  required 
by  law,  37  ;  Church  of  Eng- 
land granted  toleration,  37 

Massachusetts,  State  of,  union  of 
church  and  state  in,  104  ;  pro- 
vision for  public  worship  and 
for  the  support  of  Protestant 
teachers  of  religion,  required 
by  law  to  be  made,  104,  105  ; 
Unitarian  controversy  causes 
the  separation  of  the  church 
from  the  state,  no  ;  Sunday 
in,  292 

Miiyjiower,  agreement  made  on, 
by  the  Pilgrims,  24 

Ministers  of  the  gospel,  public 
provision  to  be  made  for  the 
support  of,  10,  22,  28,  36,  37, 
43,  44,  50,  51,  52,  6i  ;  disre- 
spect to  and  disparagement  of 
prohibited  by  law,  7,  29,  42, 
46,  60  ;  disqualification  of  for 
public  office,  reason  of,  344 


Moral  questions,  action  of  the 
State  on,  to  be  in  accordance 
with  the  code  of  Christianity, 

367 
Mystical  theories  of  the  State,  see 
"State  " 


N 


Navy,  day  of  rest  in,  to  be  oli- 
served  in  accordance  with  the 
view  held  by  the  majority  of 
Christian  citizens,  375 

Neander,  Dr.  Aug.,  on  the  Sab- 
bath, 373 

Neutrality  of  the  government  on 
the  subject  of  religion,  demand 
for,  330 

Nevv  Hampshire,  Colony,  41  ; 
blasphemy  to  be  punished  with 
death,  42  ;  Sabbath  in,  42  ; 
towns  required  to  maintain  an 
orthodox  ministry,  44  ;  Seale, 
Protestantism,  the  established 
religion  of,  98 

New  Haven,  colony  of,  53  ;  the 
Scriptures  to  be  the  fundamen- 
tal law  of,  54,  55  ;  only  church 
members  to  be  free  burgesses 
in.  54.  55  »  Sabbath  breakers, 
presumptuous,  to  be  punished 
with  death,  56  ;  attendance  at 
church  on  Sunday,  fast,  and 
thanksgiving  days,  required  by 
law,  57  ;  united  with  the  colony 
of  Connecticut,  57 

New  Jersey,  Province  of,  68  ; 
sold  to  the  Quakers,  68  ;  the 
Church  of  England  established 
in,  68 

New  York,  Province  of,  Sunday 
in,  67  ;  the  Church  of  England 
established  in,  67 

Nuisance,  blasphemy  and  Sab- 
bath desecration  to  be  punished 
as  a,  2g5,  296,  352  ;  law  of, 
should  be  impartially  enforced, 
352 


390 


Index. 


o 


Oath,  the,  essentially  religious, 
328 

Ordinance  of  1787,  iii  ;  a  com- 
pact, 112  ;  not  binding  on  the 
States  formed  upon  the  N.  W. 
and  S.  \V.  territories,  113,  117  ; 
bound  the  United  States  to  pro- 
mote religion,  morality,  and 
knowledge  in  the  N.  W.  and 
S.  W.  territories,  120 


Pagans,  to  be  protected  in  wor- 
ship, 350,  351 

Paine,  Thomas,  letter  of  Dr. 
Franklin  to,  206 

Parsons,  Theophilus,  I.L.D.,  on 
the  exclusion  of  a  religious  test 
from  the  constitution  of  the 
United  States,  212 

Paternalism,  iv.-vi.,  172,  174, 
and  the  public  school  system, 
260 

Payson,  Rev.  P.  1).  D.,  on  the 
exclusion  of  a  religious  test 
from  the  constitution  of  the 
United  States,  215 

Penn,  William,  bought  East  Jer- 
sey, 63  ;  charter  to,  68  ;  on 
the  nature  and  source  of  gov- 
ernment, 69  ;  bought  "  The 
Territories,"  70 

Pennsylvania,  The  Frame  of 
Gove7-nment  for,  68  ;  Charter 
of  Privileges  for,  70  ;  offenses 
against  God,  to  be  punished, 
6g,  71  ;  Sunday  in,  69  ;  Roman 
Catholics  debarred  from  office, 
71  ;  belief  in  the  doctrine  of 
the  Trinity  and  of  the  divine 
inspiration  of  the  Scriptures, 
required  as  a  qualification  for 
office,  71 

Personality  of  the  State,  see 
"  State  " 

Pilgrims,  argument  made  by,  on 
the  Mayfto'iocr,  24 


Pious  uses,  trusts  for,  not  to  be 
protected,  355 

Plymouth,  Company,  5,  6,  40; 
Colony  of,  attendance  upon 
public  worship  compulsory, 
25,  26 ;  profanation  of  the 
Sabbath,  to  be  punished,  25, 
26  ;  travellers  on  the  Sabbath, 
not  having  a  written  permit, 
to  be  arrested,  27  ;  observance 
of  public  days  of  fasting,  hu- 
miliation, and  prayer  required 
by  law,  27  ;  united  with  the 
colony  of   Massachusetts  Bay, 

27 
Postal   system,    the   basis   of,  in 

consent,  254 
Priestley,    Dr.    Joseph,  letter   of 

Thomas  Jefferson  to,  93 
Priests   of    the    Roman    Catholic 

Church,    to    be    banished,    I2, 

37 

Property,  church,  to  be  exempt 
from  taxation,  or  the  principle 
of  exemption  changed,  365 

Providence  Plantations,  charter 
of,  62 

Public  schools,  see  "  Schools  " 

Pyncheon,  William,  deposed  from 
office  for  heresy,  required  to 
report  progress  in  conversion 
therefrom,  his  book  on  the 
atonement  burned  on  Boston 
Common,  31 


Quakers,  importation  of  prohib- 
ited, 13,  15,  34,  6i  ;  harboring 
of  prohibited,  14,  15,  45  ;  to 
lie  banished,  33,  45,  61  ;  re- 
turning, to  be  punished  with 
death,  and  four  hanged  on 
Boston  Common,  33  ;  receive 
toleration  in  Massachusetts 
Bay,  38  ;  buy  East  and  West 
Jersey,  68  ;  acquiesce  in  the 
war,  and  judicial  policy  of  the 
government,  341 


Index, 


391 


Raleigh,  Sir  Walter,  expedition 
of,  4 

Randolph,  Edmund,  resolution 
of,  on  the  object  of  the  consti- 
tutional convention,  222  ;  on 
the  resolution  of  Dr.  Franklin 
to  open  the  sessions  of  the  Con- 
stitutional Convention  with 
prayer,  210 

Randolph,  John,  on  the  Ordi- 
nance of  17S7,  as  a  compact, 
112 

Realism,  theological,  239 

Religion,  of  a  people  enters  into 
their  laws,  124,  290  ;  the 
Christian,  in  the  common  law, 
see  "Christian";  the  State, 
under  obligation  to  teach  in 
certain  cases,  243  ;  not  to  be 
fostered  by  positive  measures, 
177.  341  i  to  receive  favor  and 
preference,  349 

Rights,  Bill  of,  in  the  constitu- 
tion of  Massachusetts,  104, 
no,  252  ;  none  in  the  constitu- 
tion of  the  U  cited  States,  220, 
221 

Rhode  Island,  the  founding  and 
the  charter  of,  62  ;  only  those 
professing  Christianity,  Roman 
Catholics  excepted,  to  be  free- 
men of,  or  qualified  for  office 
in,  64  ;  the  charter  of  1663,  the 
fundamental  law  of  the  State 
till  1S42,  64  ;  Sunday  in,  65 

Roman  Catholic,  see  "  Catholic  " 


Sabbath,  see  "  Sunday  " 

Schools,  free  or  public  and  reli- 
gion in,  17,  247,  263,  375  ;  no 
religious  qualification  required 
of  teachers  in,  249  ;  theory  of, 
251  ;  basis  of  system  general 
consent,  253  ;  same  as  of  the 
postal  system,  254 ;  Roman 
Catholics  and,    24S,  260,  265, 


272,  282  ;  decisions  of  courts 
on,  265r290.  Government, 
State,  and  Federal,  the  teach- 
ing in  to  be  in  accordance  with 
the  principles  of  Christianity, 
243,  375,  Contract,  for  the  In- 
dians, 245,  345 

Science  and  Revelation,  202 

Scripture,  see  "  Word  of  God  " 

Sect,  atheists  and  unbelievers 
constitute  a,  331 

Sects,  religious,  appropriations 
to,  from  the  public  treasury,  , 
245.  345  ;  amendment  of  the 
constitution  of  the  United 
States,  proposed,  to  prohibit, 
346 

Sherman,  Roger,  on  Dr.  Frank- 
lin's resolution,  proposing  to 
open  the  sessions  of  the  con- 
stitutional convention  with 
prayer,  210 

Shute,  Rev.  Mr.,  on  the  exclu- 
sion of  a  religious  test  from 
the  constitution  of  the  United 
States,  213 

.South  Carolina,  the  Christian  re- 
ligion established  by  the  first 
constitution  of,  loi  ;  nullifica- 
tion by,  225  ;  secession  by,  227 

Sovereignty,  what  and  where  re- 
siding, 191  ;  is  preponderating 
force,  194 

Spencer,  Herbert,  mystical  theo- 
ry of  the  State,  iSi  ;  on  the 
necessity  of  the  consent  of  the 
governed,  195 

Sprague,  Rev.  William  B.,  D.D., 
on  Sunday  in  Germany,  373 

State,  the,  antiquated  theories  of, 
167,  171, 172;  mystical  theories 
of,  181,  191,  237,  313;,  anti- 
Christian  theories  of,  177,  229, 
313,  329  ;  genesis  of,  197  ;  is 
to  teach  the  Christian  religion 
in  certain  cases,  243  ;  is  neces- 
sarily Christian  where  the  peo- 
ple are  Christian,  124,  299  ; 
duties  of,  as  Christian,  341 

States,  in  the  United  States,  con- 


392 


Index. 


stitutions  of,  g6-iii  ;  may 
make  laws  respecting  an  estab- 
lishment of  religion,  95,  iii 

Stoddard,  Prof.  O.  N.,  on  the 
personality  of  the  State,  237 

Story,  Judge  Joseph,  the  whole 
power  over  the  subject  of  reli- 
gion left  by  the  Constitution  to 
the  States,  95  ;  State  not  indif- 
ferent on  the  subject  of  religion, 
126,  207  ;  Christianity  in  the 
common  law  and  the  Constitu- 
tion, 142,  178,  221,  234,  296 

Suffrage,  the,  see  "  Ballot " 

Sumner,  Prof.  William  G.,  on 
the  ballot,  195 

Sunday,  as  Sabbath  or  Lord's 
Day  and  day  of  rest,  laws  on,  8, 
II,  12,  17,  18,  25,  26,  28,  31, 
33,  35.  39.  42,  48,  49,  52, 
56,  65,  67,  69,  75,  78,  292, 
316  ;  in  the  older  States  based 
on  the  statute  of  Charles  II., 
292,  301  ;  have  a  Christian 
basis  and  are  not  based  on  the 
demonstrations  of  experience, 
311  ;  in  the  common  law,  295, 
301,  324  ;  in  the  Constitution 
of  the  United  States,  317; 
decisions  of  the  courts  on, 
132,  134,  300,  302,  303,  304, 
322,  324,  325,  326,  339  ;  Presi- 
dent Lincoln's  order  for  the 
observance  of,  in  the  army  and 
navy,  318  ;  to  be  observed  by 
the  State,  and  legislation  on,  to 
be  in  accordance  with  the  view 
held  by  the  Christian  citizens, 
369  ;  citizens,  holding  a  differ- 
ent view,  to  be  required  to 
observe,  only  so  far  as  to  avoid 
offence  to,  and  disturbance  of 
Christian  people,  291  ;  the 
English  and  American,  or 
Puritanical  view  of,  370  ;  the 
continental  European  view, 
372  ;  convicts,  employes  of  the 
government,  soldiers  and  mar- 
iners, not  to  be  required  to  do 
unnecessary  labor  on,  316,  375 


Taxation,  church  property,  to  be 
exempt  from,  or  the  principle 
of  exemption  changed,  365 

Thanksgiving  days,  observance 
of,  required  by  law,  27,  30,  47, 
57,  97  ;  appointment  of,  vio- 
lates no  principle  of  constitu- 
tional law,  29S 

Theories,  of  the  State,  antiquated, 
167  ;  anti-Christian,  177,  229, 
313,  329  ;  mystical,  181,  187, 
191,  313  ;  untenable,  292  ;  of 
the  public  school  system,  251 

Tocqueville,  Alexis  de,  on  reli- 
gion in  the  United  States,  257 

Trinity,  denial  of  the  doctrine  of, 
a  disqualification  for  office,  18, 
71,  100;  forbidden,  73 

Tripoli,  treaty  with,  163 

Trusts,  for  pious  uses,  not  to  be 
protected,  355  ;  hostile  to 
Christianity,  not  to  be  pro- 
tected, 362 


U 


Unbelievers,  and  the  public 
schools,  264,  280,  285,  377  ; 
demand  of,  for  neutrality  on 
the  subject  of  religion,  330  ; 
constitute  a  sect,  331  ;  sum- 
mary of  demands  of,  333  ;  to 
be  protected  in  the  orderly 
propagation  of  their  doctrines, 
and  to  be  granted  incorpora- 
tion therefor,  351,  363 

Unitarianism,  the  controversy 
on,  causes  the  separation  of  the 
church  from  the  State,  in 
Massachusetts,   no 

University,  of  Illinois,  decision 
on  chapel  exercises  in,  285  ; 
the  State,  the  teaching  in,  not 
to  be  inconsistent  with  the 
fundamental  truths  of  Chris- 
tianity, 375  ;  not  to  be  the 
preserve  of  a  class,  377 


Index. 


393 


Vermont,  the  Church  of  England 
and  the  Congregational  church, 
established  in  the  towns  of, 
66  ;  constitution  of,  97  ;  belief 
in  God,  in  the  inspiration  of 
the  Scriptures  and  in  the  Pro- 
testant religion,  a  qualification 
for  othce  in,  98 

Virginia,  first  colony  of,  4  ; 
charter  of,  5  ;  the  Church  of 
England  established  in,  7,  X2, 
14,  23  ;  house  of  worship,  to 
be  provided  at  public  expense, 
6,  1 1  ;  attendance  upon  public 
worship  compulsory,  8,  20,  22  ; 
members  of  the  assembly  re- 
quired to  attend  divine  service, 
II  ;  ministers  of  religion  to  be 
supported  by  tax,  10,  22  ;  pop- 
ish priests  to  be  banished,  12  ; 
Quakers  to  be  apprehended, 
imprisoned,  and  banished, 
importation  and  harboring  of 
prohibited,  13,  14,  15,  16, 
dissenting  ministers,  preach- 
ing, to  be  banished,  15  ;  blas- 
phemy and  profane  swearing, 
to  be  punished,  7,  8,  17,  18  ; 
also  drunkenness,  7,  8,  18,  19  ; 
also  contempt  of  God's  holy 
word  and  sacraments,  S  ;  also 
desecration  of  the  Sabbath,  11, 
12,  17,  18,  20,  22  ;  also  neglect 
to  observe  days  of  public  fast- 
ing and  prayer,  16  ;  persons 
not  behaving  themselves  sober- 
ly and  orderly  during  divine 
service,  to  be  presented,  g  ;  the 
baptism  of  children  required, 
15  ;  the  teaching  of  the  Cate- 
chism required  by  law,  9 ; 
denial  of  the  being  of  God, 
the  Holy  Trinity,  the  truth  of 
the  Christian  religion,  and  the 
divine  authority  of  the  Scrip- 
tures, a  disqualification  for 
office,  18,  21 


W 

War,  the  Civil,  and  the  religious 
amendments  to  the  Constitu- 
tion, 230 

Webster,  Daniel,  argument  of, 
in  the  Girard  will  case,  140  ; 
speech  of,  in  the  Senate,  on 
Calhoun's  resolutions,  226 

Wesley,  John,  and  Charles,  in 
Georgia,  84 

Williams,  Roger,  at  Salem, 
Massachusetts  Bay,  and  ban- 
ishment of,  62  ;  charter  for  the 
Providence  Plantations,  62 

Williamson,  Hugh,  on  Dr. 
Franklin's  resolution,  propos- 
ing to  open  the  sessions  of  the 
Constitutional  Convention  with 
prayer,  210 

Wilson,  Hon.  James,  on  Chris- 
tianity, as  a  part  of  the  common 
law,  126 

Winthrop,  John,  charter  for  the 
colony  of  Connecticut,  57 

Word  of  God,  taken  as  the  funda- 
mental law,  45,  54,  55,  59; 
disbelief  of,  a  disqualification 
for  office,  18,  21,  45,  54,  55, 
59,  71,  98,  100,  102  ;  con- 
tempt of,  or  disrespect  to,  pun- 
ished, 8,  18,  29,  43,  46,  60,  74 

World's  Columbian  Exposition, 
opening  of,  on  Sunday,  318 

Worship,  public,  attendance  on, 
compulsory,  7,  8,  20,  25,  26,  30, 
39.  47,  48,  53,  57,  97  ;  delin- 
quents to  be  searched  for,  26, 
33,  40,  43,  49  ;  unseemly  be- 
havior at,  to  be  punished,  9,  22, 
25,  34- 


X 


Xenia,  in  Ohio,  convention  at,  in 
1863,  makes  the  first  proposal 
of  a  religious  amendment  to  the 
Constitution,  230 


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